Fegan v Kathy Jackson [2009] FCA 338 | Case summary

WORKPLACE RELATIONS (REGISTRATION AND ACCOUNTABILITY OF ORGANISATIONS) REGULATIONS 2003 18 The Workplace Relations (Registration and Accountability of Organisations) Regulations 2003 (Cth) also contain requirements regarding the alteration of Union rules that bear on the present application. Regulation 126 of these Regulations provides that: (1) For subsection 159(1) of the RAO Schedule, if an alteration of the rules (other than the eligibility rules) of an organisation is made, the organisation, within 35 days after the alteration is made, or within any additional period a Registrar allows, must: (a) lodge in the Industrial Registry a notice setting out the particulars of the alteration; and (b) if the organisation has a web site - publish on its web site a notice that the notice mentioned in paragraph (a) has been lodged. (2) The notice must contain a declaration, signed by an officer of the organisation authorised to sign the declaration, stating: (a) that the alteration was made in accordance with the rules of the organisation; and (b) the action taken under those rules to make the alteration; and (c) that the particulars set out in the notice are true and correct to the best of the knowledge and belief of the signatory. (3) A Registrar may refuse to certify, under subsection 159(1) of the RAO Schedule, an alteration of the rules unless this regulation is complied with. 19 Regulation 3 defines "authorised, in relation to a person making, signing or lodging a document in the Industrial Registry" as "a person authorised in accordance with regulation 12". Regulation 12(1) provides that: (1) An officer of an association, organisation, branch … is authorised to make, sign or lodge any document … under the RAO Schedule or these Regulations if the officer is authorised to do so: (a) by the association, organisation, branch …; or (b) by the rules of the association, organisation, branch … 20 The applicant argued that: (1) On 24 February 2009, pursuant to rule 49(d), the Branch Committee had altered the rules of the Union as they affected the internal management of the Branch. (2) Under Regulation 126 of the Regulations (see [18] above) an organisation had 35 days after an alteration to the rules is made to lodge the notice required by Regulation 126(1)(a) with the Industrial Registrar. The function of the Industrial Registrar was to register the rules, as altered, but, in doing so, the Registrar was required to satisfy himself or herself that the rules had been properly passed. (3) By virtue of rule 49(e), the National Secretary was the officer of the Union obliged to take the steps that ensured compliance with Regulation 126. The form of rule 49(e) was mandatory. (4) Rule 49(e) made no provision for the National Secretary to be satisfied as to any matter, but required the National Secretary to forward certain documents to the Industrial Registrar. This duty arose once the National Secretary had been given the rules made by the branch pursuant to rule 49(d) and the information and documentation necessary for making application to the Industrial Registrar. (5) In the present case, the National Secretary had this information and documentation at the latest when Mr Jackson wrote to the National Secretary, as explained in his letter to Ms Fegan of 17 March 2009. (6) The 35th day after the making of the alteration to the rules by the Branch Committee was to expire on the day the application for interim orders was heard. The National Secretary had not taken the action she was obliged to take under rule 49(e) and she had given no explanation for her inaction. (7) The applicant had a strong case, being very likely to succeed at trial. The prejudice was that the time in which the Union was required to lodge the notice required by Regulation 126(1)(a) was to expire that day. Although the Registrar might allow additional time, it was not known whether or not the Registrar would consider that there existed grounds to justify an extension. In any event, there was no reason to believe that the National Secretary would lodge the requisite notice in the future. The fact that the grant of the interim orders sought would be tantamount to a grant of final relief should not deter the Court from granting interim relief. 21 Counsel for Ms Jackson argued against the grant of interim orders and contended that: (1) The National Secretary did not have the "information and documentation necessary for the purpose" referred to in rule 49(e) and hence was under no duty to act. (2) The obligation under rule 49(e) was to "apply" whilst the requirement in s 159 of Schedule 1 and Regulation 126 was to "lodge". According to counsel for Ms Jackson, the rule presupposed something that was not found in the legislation. (3) There was nothing to show that the applicant or the National Secretary was authorised to sign the declaration referred to in Regulation 126(2), in accordance with Regulation 12. (4) The rules as altered were not made by a branch within the meaning of rule 49(e) of the Union's rules because the rules as altered by the Branch Committee went beyond rules relating to the internal management of the Branch. (5) The Court should refuse to deal with the application because it should not be satisfied that the applicant has taken all reasonable steps to try to have the matter the subject of the application resolved. 22 Towards the end of his submissions, counsel for Ms Jackson gave an undertaking to do all things practicable to apply to the Industrial Registrar on the afternoon of the hearing to seek an extension of time until 14 April 2009. An attempt on the afternoon of the hearing to apply for an extension was later said to be to no avail. Consideration 23 Each branch of the Union is "autonomous" under the rules: rule 44(a). Each branch may make rules regarding its internal management, and add to, amend, rescind or alter these rules "insofar as they relate to the internal management of a branch": see rule 49(d). Under rule 49(a), the Branch Committee has the government, management and control of the affairs of the branch; and, under rule 49(d), either the Branch Committee or the members in special meeting may make or alter the rules as to internal branch management. 24 However, under s 159(1) of Schedule 1 of the Workplace Relations Act, an alteration of the rules of a Union does not take effect unless particulars of the alteration have been lodged in the Industrial Registry and a Registrar has certified in accordance with s 159(1), including that, in the Registrar's opinion, the alteration has been made under the Union's rules and is not contrary to law. 25 Under Regulation 126 (set out at [18] above), an organisation has 35 days after an alteration to its rules is made to lodge the notice required by Regulation 126(1)(a) with the Industrial Registrar. A Registrar may refuse to certify an alteration of the rules under s 159(1) of Schedule 1 unless there is compliance with Regulation 126: see Regulation 126(3). The notice required by Regulation 126 must contain a declaration "signed by an officer of the organisation authorised to sign" the declaration, stating that the alteration was made in accordance with the rules, the action taken to effect the alteration, and that the particulars in the notice are "true and correct to the best of the knowledge and belief" of the person signing. 26 The Rules contemplate that the National Secretary is the officer of the Union who is required to take the steps for compliance with Regulation 126. This much appears from rule 49(e). Rule 49(e) casts a duty on the National Secretary to apply to the Industrial Registrar for certification of an alteration to the rules made under rule 49(d), when the National Secretary receives the rules as altered and any other information and documentation required to apply to the Registrar. 27 Rule 49(e) makes it clear that any alterations to the rules made under rule 49(d) must be forwarded to the National Secretary and that, "upon receipt of any information and documentation necessary for the purpose", the National Secretary is obliged "forthwith" to "apply" to the Industrial Registrar for their certification. Rule 49(e) thus creates a duty, which the National Secretary must perform. 28 The information and documentation necessary for the National Secretary to apply to the Industrial Registrar for certification is that which is required by Regulation 126. That is, the National Secretary cannot comply with Regulation 126 unless the Secretary has a notice setting out the particulars of the alteration as required by Regulation 126(1)(a) and containing a declaration as required by Regulation 126(2). 29 Counsel for Ms Jackson made much of the difference between the need to "lodge" in s 159 of the Schedule and Regulation 126, before the Registrar could proceed to certify the rules as altered, and the requirement to "apply" to the Registrar for certification spoken of in rule 49(e). Plainly enough, the rules of the Union should be construed in a practical way. Whilst in some contexts the differences in meaning between the words "lodge" and "apply" may be important, in the present context, it would seem that the words are used more or less interchangeably. It is clear that rule 49(e) contemplates that the National Secretary "apply" for certification, in the sense that the National Secretary takes such steps as are necessary to secure certification - which, by virtue of s 159 of Schedule 1 (see [11] above) and under Regulation 126, requires the lodgement of a notice in conformity with Regulation 126. It is possible too that rule 32(f) may be called in aid to answer Ms Jackson's submission on this point. 30 Further, for present purposes, it is reasonably arguable that the effect of rule 54(ii) is to authorise the applicant, in her capacity as President, to sign the declaration required by Regulation 126(2). The "Notice Under Regulation 126 of the Workplace Relations (Registration and Accountability of Organisations) Regulations 2003" given by the applicant to the National Secretary on 5 March 2009 assumed as much, containing as it did a declaration in the terms required by Regulation 126 signed by the applicant. There was nothing to indicate that Ms Jackson as the National Secretary disputed this assumption prior to the hearing of the application for interim orders. 31 If, as Ms Jackson at one stage suggested, the Notice was deficient because it did not set out the steps taken under the rules to alter the rules, it is reasonably arguable that any such deficiency was corrected (as far as concerned Ms Jackson) when Mr Jackson as Branch Secretary supplied the information and documentation to Ms Jackson as National Secretary, as indicated in his letter of 17 March 2009. 32 Further, at this stage at least, I am unconvinced by Ms Jackson's argument that the rules as altered were not rules relating to the internal management of the Branch. Be this as it may, the Industrial Registrar is obliged to form an opinion on whether or not the alterations have been lawfully made in accordance with the Union's rules. Before the Industrial Registrar certifies changes to the rules, the Registrar must form an opinion on the matters set out in s 159(1) of Schedule 1 (see [11] above), including that the change has been made under the rules of the organisation and is not contrary to law. The making of the interim orders sought by the applicant merely ensures that the rules as altered are placed before the Industrial Registrar for consideration. It is not a step towards approving the certification of invalid rules, as contended by counsel for Ms Jackson. 33 Before turning to "balance of convenience" type considerations, I note that, in the circumstances, I was satisfied that the applicant had taken all reasonable steps, within the meaning of s 164(3), to try to have the matter the subject of the application resolved. In Conquo v Jackson [2009] FCA 45, at [41]-[42], Sundberg J stated: In reliance on s 164(3), the respondent said there was no evidence that the applicant has taken any steps to have the validity of the 7 January resolutions resolved internally. He drew attention to Rule 21(l) which confers power on the National Council 'to interpret these Rules'. I would not refuse to deal with the present application merely because the applicant has not sought to have the validity of the resolutions resolved by an interpretation of the Rules by the National Council. Section 164(3) speaks of "all reasonable steps". In Anderson v Taylor (1990) 22 FCR 326 at 335 speaking of what was 'reasonable' in a precursor of s 164(3), Gray J said: An applicant is not to be denied relief simply because there was open to him or her some steps under the rules which might conceivably have led to a resolution of the issue which he or she seeks to raise before the Court. An applicant is not required by s 209(3) to engage in conduct the result of which is purely speculative. His Honour went on to say that a suggestion that the applicant there should have sought to persuade the national executive to reverse its earlier decisions was not reasonable because 'the applicant would have had every right to regard himself as attempting to appeal from Caesar to Caesar if he had asked the national executive to reconsider'. In the present case the National Council is supporting the respondent. Mr Langmead, who appeared for the national body, intervened with leave in support of the respondent. It would not in my view be reasonable for the applicant to expect the National Council to interpret the rules in a way that would defeat the side with which it is aligned. In any event, whatever the Council's ruling on the meaning of the rules, the matter would return to the Court. An interpretation of the rules made by the Council cannot exclude the jurisdiction of the Court. To require the applicant to approach the Council would, in my view, simply consume time to no avail. 34 I adopt his Honour's analysis of the nature of the "reasonable steps" requirement in s 164(3). In the circumstances, to require the applicant to have communicated with Ms Jackson again before making this application would have been a somewhat pointless exercise. 35 I appreciate that the grant of the interim orders sought was tantamount to the grant of final relief. In Conquo v Jackson [2009] FCA 45, Sundberg J considered whether or not it was necessary to establish a stronger than usual case in such circumstances and held that it was not. His Honour said, at [30]-[33]: On the balance of convenience the respondent contended that because what is sought by the applicant is in effect final relief, the applicant had to establish a stronger than usual case. In Bradto Pty Ltd v State of Victoria (2006) 15 VR 65 the Court of Appeal rejected a submission that because part of an interlocutory injunction required positive action, it was mandatory and not prohibitory, so that it should not have been granted unless there was a high degree of assurance that at trial it would appear that the injunction was rightly granted. Maxwell P and Charles JA said at [33]: In our view, it is desirable that a single test be applied in all cases where an interlocutory injunction is sought. There is nothing in the body of authority to which we have referred, nor any consideration of principle, which requires a special test to be applied to one subcategory of such injunction applications, namely, those where mandatory relief is sought. On the contrary, as pointed out convincingly by Hoffman J in Films Rover, the grant of a mandatory injunction may be justified in a particular case notwithstanding that the court does not feel the requisite 'high degree of assurance'. The correct approach, according to their Honours, whether the relief sought is prohibitory or mandatory, is to take whatever course appears to carry the lower risk of injustice if it should turn out to have been 'wrong', in the sense of granting an injunction to a party who fails to establish his right at trial, or in failing to grant an injunction to a party who succeeds at trial: at [35]. The Court of Appeal also rejected a contention that where an interlocutory injunction is tantamount to awarding final relief, it should be granted only if the court feels a high degree of assurance that at trial it will appear that the interlocutory injunction was rightly granted. The Court said at [39]: Once again, we see no necessity for the recognition of a special 'rule' for this - different - subcategory of interlocutory injunctions. On the contrary, we think that it must be relevant on every application for an interlocutory injunction to consider the likelihood of the plaintiff succeeding at trial. Not only is such consideration a necessary part of deciding whether there is a serious question to be tried, but the plaintiff's prospects of success will almost certainly be a factor in the evaluation of the balance of convenience. In view of the observations of Gray J in McGee v Sanders (No 2), recorded at [15], the two 'special' rules rejected by the Court of Appeal in Bradto are even less appropriate in relation to interim orders under s 164 than they are in the conventional interlocutory injunction context. It is to be remembered that an order under s 164 is defined so as to include 'directions for the performance' of any rules of an organisation by a person who is under an obligation to perform them. This will often be a mandatory order that results in the giving of final relief. An interim order under s 164(4) can plainly be an order of the same type as that granted at trial under subs (1). Accordingly I adopt the approach in Bradto in the passages quoted at [30] and [31] of considering the likelihood of the applicant succeeding at trial rather than concentrating on the fact that the second order sought is of a mandatory character and may itself amount to final relief. 36 I would adopt and apply his Honour's reasoning in this case. 37 The applicant made a strong showing that there was a serious question to be tried as to whether, in failing to apply to the Industrial Registrar for certification of the alteration of the rules as passed by the Branch Committee on 24 February 2009, the National Secretary was failing to perform the duty laid on the National Secretary by rule 49(e). The National Secretary did not point to any prejudice to her or anyone else if the National Secretary was required to lodge the notice with the Industrial Registrar as required by Regulation 126. There was prejudice to the applicant and the Branch Committee if the National Secretary was not required to take this step. It will ultimately be for the Registrar to form the opinion as required by s 159(1) of Schedule 1. 38 Accordingly, for these reasons, on 31 March 2009, I ordered that: The respondent lodge in the Australian Industrial Registry the documents forming part of exhibit "PF-2" to the affidavit of Pauline Fegan affirmed on 26 March 2009 between pages 88 - 90 (inclusive) and the documents forming part of exhibit "PF-6" between pages 107-115 (inclusive) before the Registry closes for business on 31 March 2009. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Fegan v Kathy Jackson

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