Difelice v Dettmer [2021] FCA 631 | Case summary

Federal Court of Australia|2021-06-10|Before: Snaden J

Background 20 The summary by which these reasons commence details the relevant background facts and there is no material dispute about any of them. The only additional matters that should be noted are as follows, namely: (1) the National Council meeting that took place on 6 May 2021 was convened jointly by Mr Dettmer and Mr Murphy (who respectively hold the offices of National President and National Secretary); (2) at that meeting, Mr Dettmer proposed that the charges that had been laid against the applicant should be heard and determined by the National Council; (3) the resolutions that were passed at that meeting concerning the charges brought against the applicant (hereafter, the "6 May Resolutions") were consistent with that proposal; and (4) Mr Murphy abstained from voting on those resolutions but Mr Dettmer did not.

The case for interlocutory relief 21 The applicant submits that the 6 May Resolutions are invalid and ought not to be acted upon or enforced against him. More precisely, he submits that there is a prima facie case that that is so. His contention is put in three ways. First, he submits that the meeting of the National Council at which those resolutions were passed was improperly called, such that the business that it transacted was not business that the AMWU Rules authorised. Second, he submits that the 6 May Resolutions were improperly influenced by Mr Dettmer, who has an interest in the charges that were their subject (having been one of the recipients to whom the messages that are the focus of those charges were allegedly sent). Third, he submits that they purport to vest in the National Council powers that the AMWU Rules reserve for another body. 22 I shall address each of those contentions in turn.

The calling of the 6 May 2021 meeting 23 The applicant submits that the 6 May 2021 meeting of the National Council was improperly convened because Messrs Dettmer and Murphy, who convened it, had an interest in the business that was proposed to be considered at it and, therefore, ought not to have played any part in convening it. 24 The applicant complains that Mr Murphy - as the part-instigator of the charges that have been laid against the applicant - ought not to have played any part in determining whether or not the National Council should meet in connection with those charges. That, he says, is a consequence of his entitlement to have the charges with which he is faced determined consistently with the principles of natural justice. Those principles, he submits, preclude those who have an interest in the prosecution of those charges from taking any part in the process by which they are to be determined. 25 I do not accept that there is anything more than a very weak prima facie case that Mr Dettmer's involvement in the calling of the 6 May 2021 National Council meeting offended against any relevant principle of natural justice. Mr Dettmer does not press any charge against the applicant. Even if he did, I am not persuaded that that should preclude him from overseeing otherwise unremarkable administrative processes entrusted to him under the AMWU Rules. What Mr Dettmer did is to be recalled: he resolved to bring the subject of the charges before the National Council for consideration as to what might be done with them (as the AMWU Rules plainly require). Even assuming that he has an interest in the determination of the charges brought against the applicant, Mr Dettmer hasn't done anything that could reasonably be said to have been done (or might reasonably be confused as having been done) in the service of that interest. All he did (so far as the present analysis is concerned) was exercise an administrative power conferred upon him by the AMWU Rules to call a meeting. 26 Likewise, I do not think that much can be made of the fact that Mr Murphy agreed with Mr Dettmer that there should be a meeting of the National Council to consider the charges with which the applicant is faced. Appropriately enough, Mr Murphy did not participate in the deliberative process that culminated in the passing of the 6 May Resolutions. I am unable to see how (which is to say that, at an interlocutory level, I have significant doubts that) his involvement in an unexceptional administrative process such as the convening of the meeting should invalidate the business that it subsequently transacted. No authority holding that it should was advanced.

Mr Dettmer's participation in the meeting 27 The applicant next complains that the business transacted at the 6 May 2021 National Council meeting was beyond what the AMWU Rules authorised because Mr Dettmer participated in it (contrary to the requirements of natural justice that condition the valid exercise of power under the rules). It is said that he ought not to have, as he is one of the recipients to whom the applicant is alleged to have sent the text messages that are the focus of the charges that were, in turn, the subject of administrative debate at that meeting. The applicant submits that it was not appropriate for Mr Dettmer to convene the meeting (a topic that has already been addressed), nor to propose for its consideration, or participate in the debate or vote concerning, an outcome that was ultimately endorsed (namely, that the charges brought against the applicant be heard and determined by the National Council and in accordance with an identified procedure). His having done so, the applicant submits, means that the business that the meeting transacted was not business that it was authorised to transact (which, in turn, should sound in the relief that is now sought). 28 Again, I am not persuaded that there is much of a prima facie case that Mr Dettmer's involvement in the 6 May 2021 National Council meeting offends against any principle of natural justice. Again, the business that was transacted at that meeting was not of a substantive nature (in the sense that it did not explore the applicant's guilt of the charges laid against him). The resolutions passed were administrative in nature and, for the reasons already explored, were not such as should exclude Mr Dettmer from the involvement that he had. 29 Again, I do not consider that there is anything beyond a very weak prima facie case that the 6 May Resolutions are invalid on account of Mr Dettmer's conduct.

The powers of the National Council 30 The applicant submits that the 6 May Resolutions are invalid because they purport to confer upon the National Council powers that it does not have under the AMWU Rules. For the reasons that follow, I accept that there is a strong prima facie case that that is so. 31 It is important to bear in mind that the charges that have been laid against the applicant (and the 6 May Resolutions that were passed in connection with them) are pursued in the service of a particular (or potential) end, namely his removal from office. That reality was not controversial. It reflects that the charges have been brought pursuant to rule 10A, which regulates the removal of officials from the offices that they hold. 32 The applicant is not (or, at least on the evidence as I presently appreciate it, appears not to be) a "National Official" for the purposes of rule 10A(2) of the AMWU Rules. He is (or appears to be), instead, a "State Official". Importantly, he is not a National Official by reason of his ex officio membership of the National Council (or any other internal management body). 33 Rule 10A(6) deals with the removal from office of "State Officials". It confers power to that end exclusively upon the various State Councils and State Conferences established by the AMWU Rules. 34 The respondents (or those of them who appeared at the hearing on 9 June 2021) contended that rule 10A(13) was an alternative source of the National Council's power to entertain the applicant's potential removal from office. They submitted that, because the applicant is also a member of the National Council, rule 10A(13) applied to authorise the National Council's removing him from at least that office. For at least two reasons (and respectfully), that submission is not compelling. First, the AMWU Rules qualify as members of the National Council those who hold the office to which the applicant was elected. It is not clear to me how a person might be stripped of his or her ex officio membership of National Council without being removed from the substantive office by reason of which it arises. A removal from the former without the latter would appear to sit most uneasily with the nature of an ex officio appointment (and the rules that establish it). 35 Second and more significantly, rule 10A(13) cannot sensibly be read as a source of power vested in the National Council that is additional to that conferred by rule 10A(4). To read its terms in that way requires considerable linguistic violence. It is, I think, sufficiently plain in its remit. It serves to limit what State Councils and State Conferences can do: namely they can remove from office only those who hold offices native to their respective state. Doing so might well have ramifications concerning other positions held ex officio; but consequential removal from such positions is a function of the AMWU Rules, not of anything done by a State Council or State Conference. As much is, at the very least, strongly arguable. 36 It was also suggested that the 6 May Resolutions were consistent with a discretion conferred upon the National Council by rule 10A(9)(a). That rule, it was said, identifies four alternative courses upon which the National Council is empowered to embark in circumstances such as the present. Here, it has opted for the course provided for by 10A(9)(a)(i): to require that the applicant show cause to it why he ought not to be removed from office. 37 Again, I do not regard that as a compelling construction of rule 10A(9). That the National Council has a role to play in the process by which charges laid against "State Officials" under rule 10A should progress to be determined is clear enough. Rule 10A(8) provides for the administrative trajectory of charges so laid: in the first instance, they are to be brought to the National Secretary, who must do certain things with them. Rule 10A(9) then provides for their consideration by the National Council. What the National Council might then do with them will depend, at the least, upon the nature of the office that is held by the person at whom they are aimed. Although it could be clearer, rule 10A(9)(a) merely lists the various possibilities in that regard. It does not stand as a source of power vested in the National Council that is additional to that conferred upon it by rule 10A(4), or that qualifies the equivalent conferral upon state bodies for which rule 10A(6) provides. It is not a source of power by which the National Council might remove from office those who are not National Officials (as defined). Again, at the very least, as much is strongly arguable. 38 I accept, then, that there is a prima facie case (indeed, I think a strong one) that the 6 May Resolutions - in so far as they contemplate that the National Council is competent to consider the charges laid against the applicant and the imposition of the sanction that is sought in connection with them (namely, his removal from office, including his office of Assistant State Secretary) - are invalid because they assume or seek to confer upon the National Council powers that it does not have under the AMWU Rules.

Balance of convenience 39 By his written submissions in favour of the interlocutory relief that is sought, the applicant made the following observations: The balance of convenience is all one way. As mentioned above, the Court takes into account the strength of the serious issue in assessing balance of convenience. The applicant's case on serious issue is a strong one. No interest is prejudiced by maintaining the status quo pending determination by this Court. I[f] the applicant is correct, taking any of the steps contemplated by the resolutions purportedly adopted by the National Council on 6 May 2021 would be futile. They would subject the proponents of the charges and the applicant to the cost, inconvenience and inefficiency of actions that should never have been required of them. In contrast, there is no prejudice arising from making of the interim orders. 40 With the exception of the opening and closing sentences (which, with respect, are wrong), I accept those observations. The prima facie case that the applicant has established is, I think, very strong. There would need to be fairly obvious and pronounced inconvenience to the respondents in order that the court might be persuaded not to grant the relief that he seeks. Although it plainly is not "all one way", the prejudice to the respondents in delaying until the resolution of the matter what might ultimately be their right to prosecute the charges against the applicant in the way that is proposed is not sufficiently significant to incline the court against the grant of interlocutory relief. 41 The respondents (or those of them who, by their counsel, appeared at the 9 June 2021 hearing) also sought to make something of the haste with which the applicant has brought his application for interlocutory relief. By their written submissions in opposition to the granting of interlocutory relief, they observed (references omitted): The applicant was first notified of the charges on 16 April 202122. On 20 April 2021 he was notified that…Mr Dettmer and Mr Murphy had decided that the National Council should meet on 6 May 2021. On 30 April 2021 the applicant's solicitor[s] threatened to seek relief on the bases set out in this interlocutory application but did not do so. Even after the National Council meeting on 6 May 2021, no application for interlocutory relief was made until the originating application was filed on 18 May 2021. In these circumstances it can be concluded that the prejudice to the applicant of a refusal to grant interlocutory relief is not dire (or potentially so) because, had it been otherwise, it might be expected that the applicant would have made the claim for interlocutory relief far more quickly than he did. 42 I do not accept that that should incline the court against granting interlocutory relief. That is so for two reasons. First, the prejudice that the applicant will endure in the event that no interlocutory relief is granted is not a matter about which much speculation is required. Plainly, he will be held to the process contemplated by the 6 May Resolutions. That will occur notwithstanding the very strong prima facie case that he has identified as to their invalidity. That prejudice is real and relatively certain. Second and in any event, the evidence discloses that the applicant resisted the course upon which the respondents have embarked from the moment that he became aware of it. It was appropriate - and, indeed, required under s 164(3) of the FW(RO) Act - that he take some steps to resolve his concerns before filing an application with this court. The time that passed as that process played out was not material. There can be no suggestion that the applicant has dragged his heels in a way that might disqualify him from the relief now sought.

Next steps 43 The applicant did not seek an order for costs, most likely because s 329(1) of the FW(RO) Act almost certainly precludes the court from granting him one. In the absence of application, no such order will be made. 44 Although the possibility of the matter proceeding to trial more expeditiously than it normally might was raised at the 9 June 2021 hearing, neither side made any substantive submissions on that front. With some hesitation, I make the following observations. First, as presently constituted, the demands of the court do not permit expedition. Second, I would be mindful in any event of impacting upon other litigants given the apparent strength of the case that the applicant advances (assessed, as it is at this point, at only an interlocutory level). It is one thing to elevate in priority a finely-balanced matter above the interests of litigants in other matters where the prejudice associated with delay is apparent and significant. It is quite another to prioritise - necessarily at the expense of other litigants - a matter that does not appear to bear either quality (appreciating, as I must, that I might well form a different view in the final analysis). If either party wishes to press for the matter to proceed to an expedited trial, they should let my chambers know why that is considered appropriate. Depending on what is said, it might be that the possibility of expedition can be explored with the court's registry. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.

SCHEDULE OF PARTIES VID 268 of 2021 Respondents Fourth Respondent: SHANNON BROOKS Fifth Respondent: MICHAEL CANNON Sixth Respondent: LORAINE CASSIN Seventh Respondent: CHARLIE CLARKE Eighth Respondent: STEVEN FAINGES Ninth Respondent: DEAN FAIRCHILD Tenth Respondent: ROBYN FORTESCUE Eleventh Respondent: CHRIS HARPER Twelfth Respondent: JESSE HAWKE Thirteenth Respondent: TONY HEAD Fourteenth Respondent: JASON HEFFORD Fifteenth Respondent: ANDREW KANE Sixteenth Respondent: CHRIS KIRKBY Seventeenth Respondent: JOHN LAMBROPOULOS Eighteenth Respondent: KEITH LANG Nineteenth Respondent: LUCIANO MALGERI Twentieth Respondent: TONY MAVROMATIS Twenty-first Respondent: STEVEN McCARTNEY Twenty-second Respondent: GLENN McLAREN Twenty-third Respondent: NOEL MITCHELL Twenty-fourth Respondent: LEIGH MONSON Twenty-fifth Respondent: CHRIS MOONEY Twenty-sixth Respondent: IAN MORTIMER Twenty-seventh Respondent: STEVEN MURPHY Twenty-eighth Respondent: DAVID NORRIS Twenty-nineth Respondent: COLIN ORMSBY Thirtieth Respondent: MARK PEARCE Thirty-first Respondent: TONY PICCOLO Thirty-second Respondent: JON PRIMROSE Thirty-third Respondent: DOMENIC ROZARIO Thirty-fourth Respondent: AHMET SAYAN Thirty-fifth Respondent: JOHN SHORT Thirty-sixth Respondent: DAVID SMITH Thirty-seventh Respondent: KAREN SMITH Thirty-eighth Respondent: HEIDI STENSCHKE Thirty-nineth Respondent: MICHAEL TERRY Fortieth Respondent: GLENN THOMPSON Forty-first Respondent: JENNY TYNAN Forty-second Respondent: ROHAN WEBB Forty-third Respondent: CORY WRIGHT

Principles to be applied 12 The applicant's claim for interlocutory injunctive relief is premised upon s 164 of the FW(RO) Act, which provides as follows (by means of subsections that, for reasons neither apparent nor material, are not entirely consecutive): 164 Directions for performance of rules Application for order directing performance of rules (1) A member of an organisation may apply to the Federal Court for an order under this section in relation to the organisation. Note: For the meaning of order under this section, see subsection (9). (2) Before making an order under this section, the Court must give any person against whom the order is sought an opportunity of being heard. (3) The Court may refuse to deal with an application for an order under this section unless it is satisfied that the applicant has taken all reasonable steps to try to have the matter that is the subject of the application resolved within the organisation. Court may make interim orders (4) At any time after the making of an application for an order under this section, the Court may make any interim orders that it considers appropriate and, in particular, orders intended to further the resolution within the organisation concerned of the matter that is the subject of the application. (5) An order under subsection (4) continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of the proceeding concerned. Definition (9) In this section: order under this section means an order giving directions for the performance or observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules. 13 Inherent in the applicant's case is a contention that the National Council has operated and is operating in contravention of the AMWU Rules insofar as it proposes to deal with the charges that have been laid against the applicant (and, at least potentially, to remove him from the office or offices that he holds in consequence of any guilt so determined). It is to that process that the applicant seeks to put a stop, including on an interlocutory basis. 14 Various of the AMWU Rules bear upon the proposed determination of the matter. As has already been traced, the executive functions of the AMWU are dispersed across a hierarchy of internal management bodies. For present purposes, it suffices to note that the Union is comprised of state-based branches, which are managed by their own executive bodies, subject to a degree of oversight by equivalent bodies established at a national level. At the national level, day-to-day executive decision making vests in a number of office bearers, whose functions are broadly supervised by the National Council. The National Council meets periodically and is, itself, broadly supervised by a body known as the National Conference, which is convened less regularly. State branches appear to function in much the same way: that is, via the agency of office bearers, a "State Council" and a "State Conference". 15 Rule 10D of the AMWU Rules is headed, "breach of rules". It provides as follows: 1. Subject to the provisions of rule 10A - Rights of Officials, the National Conference and/or National Council shall have power to investigate any suspected or alleged breach of these rules and to determine whether any member has committed a breach of these rules. National Conference or National Council may by resolution remit the power to investigate and determine any such matter to a State Conference, State Council or State Administrative Committee subject to the provisions of these rules as to appeals. 2. A member is guilty of a breach of these rules who: (a) breaches or fails to comply with any provision of these rules; … (f) obstructs, insults or behaves in an offensive manner towards any officer or employee of the Union acting in the course of his or her duties; … (j) wrongfully holds himself or herself out, without reasonable excuse, as occupying any office or position, or as representing the Union; … 3. Any member who alleges that another member has breached these rules may bring a charge under this rule. Such charge shall be in written form and shall be forwarded to the National Secretary who shall submit it to the next meeting of National Council (including a meeting of National Council by telephone hook-up) for further consideration. However, the powers of the National Conference and national Council under this rule shall not depend upon the laying of a charge by an individual member in accordance with this sub-rule. 4. National Council after consideration of the charge may resolve, subject to rule 10A: (a) to refer or remit the matter in accordance with sub-rule 1 of this rule; (b) to proceed to investigate and determine the charge; (c) if the charge is brought against an elected official that the alleged circumstances giving rise to the charge are more appropriate to be dealt with under rule 10A - Rights of Officials of these Rules; or (d) to not take any further action in relation to the matter. 5. The National Council shall have power to resolve policies as to procedures and matters that may be observed prior to and during the hearings of charges under this rule. 6. A member shall not be found guilty of a breach of these rules unless he or she has been given notice of the charge made and any written particulars in relation to the charge and has been given a reasonable opportunity to present any defence to the charge. 7. The appropriate body hearing the charge shall, subject to the rights of appeal provided in these rules, have power to expel or suspend from membership (such suspension being for a specified period not exceeding twelve months) or to impose a fine not exceeding One hundred dollars ($100.00) or a rebuke or caution, reprimand or warning upon any member found guilty of a breach of these rules. 8. No member charged with a breach of these rules shall be dealt with more than once for the same alleged breach of the rules. No holder of an office within the Union shall be dealt with in relation to the same alleged matter or matters under both this rule and rule 10A - Rights of Officials, provided that nothing herein contained shall be construed as affecting the right of a charge to be laid and determined under rule 10A against an official in relation to a matter or matters that would also constitute the basis of a charge or charges under this rule. A charge brought under this rule may be withdrawn or not proceeded with at any time prior to a decision on the charge by the appropriate body first hearing that charge, and action initiated under rule 10A in respect of the matter or matters contained in the previous charge under this rule, and vice versa, so that a matter or matters initially commenced under rule 10A may subsequently be dealt with under this rule. 16 Rule 5B3 of the AMWU Rules is headed, "meetings and voting of national council". Of present relevant is rule 5B3(1), which provides as follows: 1. Meetings Meetings of the National Council shall be held at least half yearly at the office of the National Council unless otherwise decided. A meeting of the Council shall also be held when deemed necessary by the National President and National Secretary and as quickly as possible on demand by any four members of the National Council. 17 Of central relevance to the present matter is rule 10A, which is headed "rights of officials". It provides for the removal of certain officials from office and relevantly provides as follows: 1. No person elected to an office within the Union shall be removed from that office except in accordance with this rule. 2. For the purposes of this rule, the following words shall have the meanings here provided: "National Official" shall mean the National President, National Secretary and the National Assistant Secretaries. "State Official" shall mean the State President State Secretary, State Vice-President, the State Assistant Secretaries, the State Organisers, the State Conference and the National Conference delegates in that State. 3. By a two-thirds majority of votes taken at a meeting of the National Conference, the Conference may by resolution in that behalf remove from office a National Official of the Union, where that Official has been found guilty under the rules of the Union of misappropriation of the funds of the Union, a substantial breach of the rules of the Union, gross misbehaviour or gross neglect of duty, or has ceased, under the rules of the Union, to be eligible to hold the office. 4. By a two-thirds majority of votes taken at a meeting of the National Council, the National Council may by resolution in that behalf remove from office, subject to this sub-rule, a National Official of the Union, where that Official has been found guilty under the rules of the Union of misappropriation of the funds of the Union, a substantial breach of the rules of the Union, gross misbehaviour or gross neglect of duty, or has ceased under the rules of the Union, to be eligible to hold the office. Where such resolution has been carried by National Council it shall be submitted to the members of the National Conference by post for endorsement. No such resolution of the National Council shall have force or effect until such time as it has been submitted to and endorsed by a majority of the National Conference. 5. Deleted. 6. By a two-thirds majority of votes taken at a meeting of a State Conference, the Conference may by resolution in that behalf remove from office a State Official of the Union in that State where that Official has been found guilty under the rules of the Union of misappropriation of the funds of the Union, a substantial breach of the rules of the Union, gross misbehaviour or gross neglect of duty, or has ceased, under the rules of the Union, to be eligible to hold the office. State Council at a meeting may by resolution in that behalf remove from office, subject to this sub-rule, a person holding one of the offices referred to in this sub-rule after being found guilty by a two-thirds majority of votes taken at a meeting, of one or more of the offences described in this sub-rule. Where such resolution has been carried by State Council it shall be submitted to the members of the State Conference by post for endorsement. No such resolution of the State Council shall have force or effect until such time as it has been submitted to and endorsed by a majority of members of the State Conference. 7. Deleted. 8. Any member desiring to invoke the preceding sub-rules 3, 4 or 6 against a person elected to an office shall in writing charge that person with the conduct or circumstances alleged to justify that person's removal from office and shall forward the written charge to the National Secretary who shall forthwith: (a) forward a copy of the written charge to the person against whom the charge is made at the same time in writing requesting the person charged to advise whether he or she admits or denies the charge or wishes to make any comment thereon; and (b) forward a copy of the written charge and, after receipt of any reply thereto from the person charged, a copy of that reply, to the relevant State Secretary. 9. (a) At the next ordinary or special meeting of National Council (including a meeting of National Council by telephone hook-up) the charge and any reply made by the person against whom the charge is made shall be considered and the National Council may resolve that: (i) the person charged be called upon to show cause to National Conference or National Council why he or she should not be removed from office; (ii) Deleted. (iii) the charge should be more properly heard by a State Conference or State Council of the Union and. in such case, direct that the charge and any reply thereto be forwarded to the relevant State Secretary so that it might be considered at the next meeting of the State Council and that State Council shall thereupon decide whether the charge shall be heard by itself or by the State Conference; (iv) Deleted. (v) no further action be taken: or (vi) that the alleged circumstances giving rise to the charge are more appropriately dealt with under rule 10D of the rules - Breach of Rules. (b) Deleted. (c) If the charge in question relates solely to the affairs of a particular State and to a State Official who only holds office that State or representing that State, then the National Council shall remit the matter to the relevant State Secretary to be dealt with by the State Conference or State Council of that State in accordance with this rule, unless the National Council is of the view that the charge cannot be fairly dealt with by that State. A decision that a State cannot fairly deal with a charge may be made by National Council of its own motion or upon the request of the person laying the charge or the request of the person against whom the charge is laid. … 10. If the charge is proceeded with the person charged shall be called upon to attend before the appropriate body at a stated time and place to show cause why he or she should not be removed from office and shall be furnished by the person laying the charge with particulars of the charge reasonably sufficient to enable him or her to know the nature of the allegation made against him or her and the circumstances alleged to justify the person's removal from office. 11. The person laying the charge and the person charged: (a) shall be heard in person if he or she or they so desire: or (b) may submit a written statement, call witnesses or evidence relevant to the charge. No person shall be present at the hearing of the charge other than the person charged, the person laying the charge, and their legal representatives or advocates if so approved by the body hearing the charge, and the members of the body and any witnesses called, provided that any witnesses called may only be present while that witness's evidence is being taken. No person, other than a member of the relevant body, shall be present after the hearing of the charge whilst the body is deliberating upon its decision in relation to such a charge. A person who is a member of the body hearing the charge and who also proposes to give evidence at the hearing of the charge shall advise the body hearing the charge before the commencement of the hearing and may remain present for the whole of the hearing and may participate in the deliberation and voting on that charge, unless a majority of persons voting at the hearing of that charge (not including the witness in question) resolves that it would not be just or proper in all the circumstances of the case. If the body hearing the charge determines that it would not be just or proper that a potential witness also sits as a member of the body hearing the charge that person may thereupon elect whether to give the proposed evidence or to sit as a member of the body hearing the charge and advise the body accordingly prior to the commencement of the hearing of the charge. 12. National Council may resolve policies as to procedure and matters that may be observed prior to and during the hearing of charges under this rule. 13. The appropriate body shall determine the matter and shall make such decision thereon as the facts of the matter require and such decision shall, subject to the provisions of these rules as to appeals, be final. In making a decision under this sub-rule a body may remove an official found guilty of a charge laid under this rule from some or all of the offices held by that official in the Union, provided that a State Conference or State Council may only remove a State Official from one or more of the offices held by the official in that State or representing that State. 14. An office holder may, by resolution of National Council in the case of a charge to be heard by National Conference or National Council, or by State Council in the case of a charge remitted to be heard by State Conference or State Council, be directed not to carry out some or all of the duties attaching to his or her office pending the hearing of any charge against that official, and the appropriate body may also resolve in the case of the holder of a full-time office whether or not the office holder charged shall receive wages and other payments normally due to him or her by virtue of holding that office until the charge against the official is heard and determined. Any decision of a State Council shall be limited to offices held by a State Official in that State or representing that State. 15. No decision under this rule shall debar any person affected, provided they possess the qualifications prescribed by these rules, from nominating in a subsequent ballot to fill the office or offices from which he or she was removed or any other office in the Union. 18 In Briant v Martin [2020] FCA 1009, [19]-[22] (Snaden J), I made the following observations about the legal principles that govern the court's consideration of matters such as this one: The parties were more or less aligned as to the principles that the court must apply in considering whether or not to grant interlocutory relief in a case such as this one. By her written submissions favouring a grant of interlocutory relief, the applicant contended as follows (references omitted): The power to make the order under s 164 and 164A is a function of the conferral of the jurisdiction on the court. The court can make interim orders 'that it considers appropriate': ss 164(4). The section does not import the law governing the grant of interlocutory injunctions. One purpose of an interim order under s 164 reflects that of interlocutory injunctions, namely to maintain the status quo to enable[ ]the court to do justice at trial. However, there may be little difference in practical application between the usual test for interlocutory injunctions and the statutory test. What is likely to occur at trial, if the evidence remains the same, is relevant in determining if relief should be granted. It will only be [in] rare cases that a court, satisfied there has been a failure to perform or observe the rules, will deny relief to remedy the contravention. I adopt that statement of principle. To it I should add only one qualification: namely, that it will be rare for the court to be "satisfied", on an interlocutory basis, that there has been a failure to perform or observe an organisation's rules. Necessarily, that is a question that lies for determination at the trial stage. At the interlocutory stage, the court's attention is as to whether or not there is a prima facie case that there has been a failure to perform or observe an organisation's rules. In Johnston v Cameron [2002] FCA 948, [98]-[100] (Weinberg J), this court made the following observations about the principles to be applied in an application for interlocutory relief under a legislative predecessor of s 164 of the Act: There is authority for the proposition that the usual test for interlocutory injunctions, namely, that there be a serious question to be tried, and that the balance of convenience favour the grant of such an injunction, may not be applicable under s 209: McGee v Sanders (No 2) [1991] FCA 554; (1991) 32 FCR 397 at 402-403 and Adlam v Noack (1998) 90 IR 31 at 34-35. In the former case, Gray J concluded that s 209(4) required the Court to do justice as best it can when confronted by an application for interim orders. In the latter case, von Doussa J observed that one of the primary considerations in determining whether or not to make interim orders "must be the efficient and effective working of the Union pending the final resolution of the proceedings". There seems to me to be little difference, in practical application, between the usual test for interlocutory injunctions, and the test propounded for use under s 209. For the sake of convenience I propose to adopt the traditional language associated with the usual test, though bearing in mind the need to apply that test with some flexibility. Respectfully, I agree. As his Honour did on that occasion, I shall employ "the traditional language associated with the usual test" but I shall do so conscious of the qualifications thereupon to which the authorities refer. 19 Those observations apply with equal force to the present matter.

Difelice v Dettmer

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Judgment (8 paragraphs)

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Legislation Cited (2)

Cases Cited (5)