Jolly v Sharma

BACKGROUND

1. The VLD is a Branch Division of the Victorian Branch of the Union. The VLD has approximately 1,273 members. In practice, the VLD operates on a day to day basis as a separate entity within the Union.
2. Prior to December 2022, the VLD had two full-time paid officials: the Branch Divisional Secretary, Mr Marc Marotta, and the (current) Assistant Branch Divisional Secretary, Mr Jim Chrysostomou. The VLD office also included an employed lawyer and two other staff members.
3. In late 2022, Mr Marotta contested the position of Branch Secretary at the election. This meant that he could not stand to be re-elected as VLD Branch Divisional Secretary. Mr Marotta was unsuccessful in the Branch election and, on 21 December 2022, his term as VLD Branch Divisional Secretary ended. Immediately after that, he was employed by the VLD as an 'Executive Officer'.
4. On 24 July 2023, Ms Pearljit Singh, a member of the Branch allocated to the Administrative Supervisory, Technical and Professional Branch Division, registered the business name "Independent Transport Union" (ITU).
5. On 28 July 2023, MM Industrial Consultant Pty Ltd was registered. Mr Marotta is its sole director and shareholder.
6. On 8 August 2023, Mr Marotta resigned as Executive Officer of the VLD and received from the VLD a termination payment of $204,947.78, including $67,315.64 for sick/personal/carers leave credits to which, it is alleged, he had no contractual or other legal entitlement.
7. On 9 August 2023, Mr Marotta resigned his membership of the Union.
8. From 10 August 2023, Mr Marotta commenced providing services to the ITU and, from 11 August 2023, MM Industrial was engaged by the VLD to provide services to the VLD.
9. On 19 September 2023, Mr Tanyol Beyit and Mr Mario Monteleone were appointed officers of the ITU while each was a member of the Union allocated to one of the Rail Divisions.
10. On 2 October 2023, Mr Beyit emailed a resignation form to the Victorian Branch. The metadata identified Mr Marotta as the author of the resignation form. Ms Singh and Mr Monteleone also emailed resignation forms to the Branch which appeared identical to the form emailed by Mr Beyit.
11. On 2 October 2023, the ITU sent a mass email to Union members which, amongst other things, stated that: The ITU have engaged experienced and specialist support including long standing unionist and experienced industrial relations representative Marc Marotta, who will represent YOUR interests in dealings with management. Marc is currently representing RTBU members that have been ignored or threatened by current RTBU officials. Marc has over 50 years' experience in the rail industry and 30 years' in negotiating the best outcomes for his members. Marc has worked hard for the Locomotive Division of the RTBU and now we have engaged him to get you the best deal. If you want professional and responsive representation, the ITU will provide it. … If you want a better union - resign from the dysfunctional organisation that uses your union dues for the wrong reasons and join the ITU whose focus is your work conditions and defending your workplace rights.
12. The respondents contend that the ITU is a competitor to all aspects of the Union's operations in Victoria and the ITU is seeking to recruit members from all parts of the Branch's coverage, except the Tram and Bus Branch Division.
13. At a meeting of the Branch Executive on 11 September 2024, the Victorian Branch Executive passed a resolution (Branch Executive Resolution), which provided as follows: The Branch Executive NOTING THAT Marc Marotta lost the election for the office of Branch Secretary which was declared in December 2022 AND NOTING THAT the Victorian Locomotive Branch Division (VLD) employed him the same day he lost the election i.e. 21 December 2022 in the position of Executive Officer at the Divisional Secretary pay rate AND NOTING THAT he worked as an Executive Officer from 21 December 2022 to 8 August 2023 AND NOTING THAT he registered a company MM Industrial Consultant Pty Ltd on 28 July 2023 and started providing consulting services to VLD from 11 August 2023 at $100 per hour excluding GST AND NOTING THAT VLD has paid MM Industrial Consultant Pty Ltd over $120,000 for consultancy services since 11 August 2023 AND NOTING THAT MM Industrial Consultant Pty Ltd and Marc Marotta are also assisting Independent Transport Union Inc which is an outfit trying to undermine the interests of RTBU AND NOTING THAT VLD has two elected full-time paid officials, delegates, other RTBU paid staff who are performing work for VLD and access to resources including legal resources to address RTBU members' needs HEREBY RESOLVES:
14. To direct the officers of the Victorian Locomotive Branch Division and the members of the Victorian Locomotive Branch Divisional Committee to take all steps necessary to: a) immediately cease engagement with MM Industrial Consultant Pty Ltd and Marc Marotta for any services; b) not engage Marc Marotta or MM Industrial Consultant Pty Ltd in the future; and c) not engage any other person or organisation for industrial advice or consultancy without prior approval of the Branch Executive.
15. To direct Mr Paris Jolly, the Locomotive Branch Divisional Secretary to: a) notify Marc Marotta in writing by no later than Friday 27 September 2024 that VLD's engagement with Marc and MM Industrial Consultant Pty Ltd has been terminated; and b) provide a copy of the notification outlined in 2(a) above to Branch Secretary within 48 hours of it being issued.
16. At a meeting of the National Executive on 11 November 2024, the National Executive passed a resolution (National Executive Resolution) which provided as follows: NOTING THAT prior to the Victorian Branch elections in 2022, Marc Marotta held the full- time, paid Office of Branch Divisional Secretary of the Victorian Locomotive Branch Division (VLD) and that the VLD also had a full-time paid Branch Divisional Assistant Secretary and other full-time paid staff plus delegates to service the needs of VLD members AND NOTING THAT on 21 December 2022 Mr Marotta ceased to hold the position of Branch Divisional Secretary of the VLD AND NOTING THAT on 21 December 2022 the VLD appointed Mr Marotta to a full-time position as "Executive Officer" at the same rate of pay as the VLD Branch Divisional Secretary, additional to the newly elected VLD Branch Divisional Secretary Paris Jolly and the re-elected Branch Divisional Assistant Secretary and the same full-time paid staff and delegates as prior to the election AND NOTING THAT prior to 21 December 2022 the position of "Executive Officer" did not exist and had not been necessary in the VLD AND NOTING THAT Mr Marotta remained employed as "Executive Officer" from 21 December 2022 until 8 August 2023 for which he received pay from VLD totalling $104,147.17 gross AND NOTING THAT on 24 July 2023 a member of the RTBU, Pearljit Singh, registered "Independent Transport Union" (ITU) as a business name AND NOTING THAT on 28 July 2023 MM Industrial Consultant Pty Ltd was registered with ASIC with Mr Marotta as its sole director and sole shareholder AND NOTING THAT on 8 August 2023 Mr Marotta resigned as "Executive Officer" and received from VLD a termination payment of $204,947.78 gross, including $67,315.64 for sick/personal/carers leave credits for which he had no contractual or other legal entitlement to AND NOTING THAT on 9 August 2023 Mr Marotta resigned from the Union AND NOTING THAT on 10 August 2023 and 22 August 2023, according to his lawyer, Mr Marotta provided to ITU, precedent Appointment of Bargaining Representative forms for their use AND NOTING THAT ON 2 October 2023 the ITU sent a mass email to RTBU members which: (a) introduced the ITU; (b) stated that ITU's fees were lower than the RTBU; (c) stated that it had engaged Mr Marotta: "The ITU have engaged experienced and specialist support including long standing unionist and experienced industrial relations representative Marc Marotta, who will represent YOUR interests in dealings with management. Marc is currently representing RTBU members that have been ignored or threatened by current RTBU officials. Marc has over 50 years' experience in the rail industry and 30 years' in negotiating the best outcomes for his members. Marc has worked hard for the Locomotive Division of the RTBU and now we have engaged him to get you the best deal. If you want professional and responsive representation, the ITU will provide it." (d) encouraged RTBU members to resign from the RTBU: "If you want a better union - resign from the dysfunctional organisation that uses your union dues for the wrong reasons and join the ITU whose focus is your work conditions and defending your workplace rights." (e) linked the website URL , which included an ITU membership form and links to download forms to resign membership to the RTBU and cancel employer deductions for RTBU fees. The metadata of the forms to resign membership of the RTBU and cancel employer deductions for RTBU fees stated that the author of each was Marc Marotta AND NOTING THAT in evidence in the Federal Court on 30 October 2023, Mr Marotta agreed that he had been retained by the ITU to provide advice about bargaining matters AND NOTING THAT records provided by VLD to the Victorian Branch on 13 August 2024 showed MM Industrial Consultant Pty Ltd rendered invoices to the RTBU from 24 August 2023 to 24 May 2024 for "consultation services" and travel for a total of over $120,000 (inc GST) AND NOTING THAT the financial membership of VLD remained relatively stable in the period from December 2022 until March 2024, after which it fell from 1,606 members to 1,117 members in September 2024, thereby significantly reducing the number of members to be serviced by VLD officers, staff and delegates AND NOTING THAT on 11 September 2024 the Victorian Branch Executive resolved:
17. To direct the officers of the VLD and members of the VLD Divisional Committee to take all steps reasonably necessary to: (a) immediately cease engagement with MM Industrial Consultant Pty Ltd and Marc Marotta for any services; (b) not engage Marc Marotta or MM Industrial Consultant Pty Ltd in future; and (c) not engage any other person or organisation for industrial advice or consultancy without prior approval of the Branch Executive.
18. To direct Mr Paris Jolly, the Locomotive Branch Divisional Secretary to: (a) notify Marc Marotta in writing by no later than Friday 27 September 2024 that VLD's engagement with Marc and MM Industrial Consultant Pty Ltd has been terminated; (b) provide a copy of the notification outlined in 2(a) above to Branch Secretary within 48 hours of it being issued (together, the Required Steps) AND NOTING THAT as at Monday, 11 November 2024, being the date of this Meeting of the National Executive, the officers of the VLD and members of the VLD Divisional Committee have not taken the Required Steps The National Executive resolves that:
19. the VLD is hereby directed to take the Required Steps by no later than 4pm on Monday 25 November 2024;
20. the VLD Branch Divisional Secretary, Paris Jolly, is directed to submit a written report to the National Secretary, the National President and the Victorian Branch Secretary outlining all steps taken to comply with the direction in [1] of this resolution by 4pm on Tuesday, 26 November 2024;
21. the Victorian Branch Secretary and/or National Secretary is authorised to commence any proceeding necessary to enforce this resolution in any court of competent jurisdiction;
22. the direction in [1] of this resolution, and the obligation on the officers of the VLD and the members of the VLD Branch Divisional Committee to comply with that direction, remains operative and in effect until it is fully complied with, irrespective of whether the time for compliance has passed;
23. if the direction in [1] of this resolution has not been complied with by 4pm on Monday 25 November 2024, the VLD is to pay the Victorian Branch's and the National Office's reasonable legal costs incurred in relation to enforcing the Victorian Branch Executive Resolution of 11 September 2024, including the costs of any proceedings commenced by the Victorian Branch Secretary and/or National Secretary to enforce this resolution and those proceedings result in Court orders requiring the VLD, including its officers and/or employees, to take some or all of the Required Steps.

The application

1. The applicant contended that the court should make interim orders, pursuant to s164(4) of the FW(RO) Act, restraining the Union from implementing the Branch Executive Resolution and National Executive Resolution. The applicant submitted that there is a strong prima facie case that the Branch and National Executive Resolutions are invalid and of no effect and the balance of convenience favours the grant of the interim orders. The applicant relied on six affidavits, which were read into evidence without any objection. The applicant was not required for cross-examination.
2. The respondents' position was that the Branch and National Executive Resolutions are valid and there is not a serious question to be tried. The respondents further submitted that the balance of convenience does not support the making of interim orders and consequential interference with the governance of the Union. The respondents relied on two affidavits of Mr Sharma, which were also read into evidence without any objection. Mr Sharma was not required for cross-examination.

The Union Rules

1. Rule 6 is contained in Part II of the Rules, which deals with "Structure and Government". Rule 6 relevantly provides: 6 - structure and organisation (1) The Union shall be organised principally on a National, a Branch, a Sub‑Branch, a National Divisional, a Branch Divisional and a Branch Sub‑Divisional basis. … (3) Subject to any subsequent decision by the National Council of the Union, the Union shall have the following Branches:- New South Wales Branch Queensland Branch South Australian and Northern Territory Branch Tasmanian Branch Victorian Branch Western Australia Branch … (8) The Victorian Branch shall comprise all members whose usual place of work is located within the State of Victoria. … (10) Divisions shall be defined primarily by reference to work functions and shall operate at both the National and the Branch level. (11) Subject to sub‑rule 6(12) the Union shall have the following National Divisions:- National Administrative, Supervisory, Technical and Professional Division National Infrastructure Division National Locomotive Division National Rail Operations Division National Tram and Bus Division National Fleet Manufacture, Overhaul, Maintenance and Service Division with each Division being defined as follows:- The National Administrative, Supervisory, Technical and Professional Division shall comprise members employed in an administrative, supervisory, technical or professional position or in any clerical or other position which attracts an annual salary but excluding crafts, trades and the driving of trains, buses, trams or other vehicles. The National Infrastructure Division shall comprise members employed in the construction and maintenance of a permanent way and associated structures, signalling, buildings, bridges, electrical reticulation and related areas. The National Locomotive Division shall comprise members employed in railway train running including locomotive drivers, electric train drivers, firemen, locomotive assistants, electric helpers, chargemen and cleaners, and rail motor drivers and trainees in these callings and, in Queensland, guards. The National Rail Operations Division shall comprise members employed in all operational aspects of railway services both freight and passenger, other than members in the Locomotive Division or in the Administrative, Supervisory, Technical and Professional Division. The National Tram and Bus Division shall comprise members employed in the tramway, motor omnibus and/or trolley bus industry including light rail services which are an extension of existing tram routes. The National Fleet Manufacture, Overhaul, Maintenance and Service Division shall comprise members, other than professional or salaried staff, employed in fleet manufacture, overhaul, maintenance and service. … (13) …each National Division shall be divided into Branches, known as Branch Divisions and the boundaries of such Branch Divisions shall correspond with the Branches of the Union. …
2. As provided by Rule 6, the Union is organised on a National, a Branch, a Sub-Branch, a National Divisional, a Branch Divisional and a Branch Sub-Divisional basis. Branches of the Union are organised on a State basis (Rule 6(3)). Rule 6(11) identifies the six National Divisions in the Union. Each National Division is divided into Branches, known as Branch Divisions, the boundaries of which correspond with the Branches of the Union (Rule 6(13)). Relevant to this proceeding is the Victorian Branch and the Victorian Branch Locomotive Division or the VLD.
3. Part V of the Rules deals with "National Governing Bodies and Office Bearers". It contains Rule 28 regarding the National Council and relevantly provides: 28 - NATIONAL COUNCIL (1) The National Council shall be the highest deliberative body in the Union. Subject to these Rules, the National Council shall have power to do all such things as are within the objects of the Union or incidental thereto including:-
4. Part V also includes Rule 29 which deals with the National Executive and relevantly provides: 29 - NATIONAL EXECUTIVE (1) The National Executive shall be the Committee of Management of the Union. Subject to these Rules, to the policies and decisions of the National Council and to the review of its decisions by the National Council, it shall have the care, control, management and superintendence of the activities of the Union and between meetings of the National Council, it may exercise all or any of the powers and functions of the National Council other than the power to make, alter or rescind these Rules but it shall not act contrary to any policy or decision of the National Council and shall not rescind, alter, vary or revoke any such policy or decision. All decisions within the powers of the National Executive shall have full force and effect unless and until disallowed by the National Council.
5. Part VI of the Rules deals with "Branch Governing Bodies and Office Bearers" and applies to all Branches unless modified by the Branch specific provisions in Parts X to XVI of the Rules (Rule 41). Part VI includes Rule 42 which deals with the Branch Council and relevantly provides: 42 - BRANCH COUNCIL (1) The Branch Council shall be the highest deliberative body in the Branch. Subject to these Rules and any policies or decisions of the National Council or the National Executive, the Branch Council shall have power to do all things in relation to the Branch which are within the objects of the Union or incidental thereto including, without limiting the generality of the foregoing …
6. Part VI also includes Rule 43 which deals with the Branch Executive and relevantly provides: 43 - BRANCH EXECUTIVE (1) The Branch Executive shall be the Committee of Management of the Branch. Subject to these Rules, to the policies and decisions of the National Council, the National Executive and the Branch Council and to the review of its decisions by the Branch Council, it shall have the care, control, management and superintendence of the activities of the Branch and between meetings of the Branch Council, it may exercise all or any of the powers and functions of the Branch Council other than the power to make, alter or rescind Parts X to XVI of these Rules but it shall not act contrary to any policy or decision of the Council and shall not rescind, alter, vary or revoke any policy or decision of the Branch Council. All decisions within the powers of a Branch Executive shall have full force and effect unless and until disallowed by the Branch Council.
7. Rule 46 deals with "Intervention in Branch and Divisional Affairs" and addresses the circumstances in which the National Executive and National Council may intervene in the affairs of a Branch, a National Division, or a Branch Division. Rule 46(1) provides: 46 - INTERVENTION IN BRANCH AND DIVISIONAL AFFAIRS (1) Where a Branch, or a National Division or a Branch Division refuses to comply or fails, within a reasonable time after receipt of a direction from the National Executive, to comply with these Rules or the National Policy of the Union or the decisions of the National Council or the National Executive or, in the case of a Branch Division with Branch policy or decisions of the Branch Council or the Branch Executive, then the National Council may suspend the Governing Bodies of the Branch or the National Division or the Branch Division, as the case may be, for a period of not more than six months and place the administration of such Branch or National Division or Branch Division in the hands of the National Executive. The National Executive may in turn appoint an administrator, answerable to the National Executive, to manage the affairs of the Branch or the National Division or the Branch Division, as the case may be, during the period of suspension.
8. Rule 58(1), which is central to the present dispute and also falls under Part VI, deals with Branch Divisional Committees. It provides as follows: 58 - BRANCH DIVISIONAL COMMITTEES (1) Each Branch Division shall have a Branch Divisional Committee. Subject to these Rules and the policies and decisions of the National Council, the National Executive, the Branch Council and the Branch Executive, the Branch Divisional Committee shall have management of those aspects of the Branch's operations which affect members of the Branch Division only.
9. Part XIV of the Rules contains specific provisions that relate to the Victorian Branch. The provisions of Part XIV are not material to the application, although it is worth noting that, similarly to Rule 6, Rule 156(1) in Part XIV confirms that the Branch shall be principally organised on a Branch, Branch Divisional, a Sub-Branch and a Sub-Divisional basis.

The FW(RO) Act and applicable principles

1. Section 164 of the FW(RO) Act allows a member of an organisation to apply to this court for orders under that section in relation to the organisation and provides: 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.
2. The applicable legal principles were not in dispute. In R v Joske; ex parte Shop Distributive and Allied Employees Association (1976) 135 CLR 194 at 212; [1976] HCA 48, Mason and Murphy JJ discussed the operation of s 141 of the Conciliation and Arbitration Act 1904 (Cth), which is the precursor of s 164, and stated: The judgments of this court in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 make it perfectly clear that sub-s (1) of s 141 is not confined to the making of orders directing the performance or observance of a particular rule or particular rules of the organization, as the prosecutors would have it, and that it extends, as its words explicitly state, to the giving of directions for the performance or observance of any of the rules of an organization, that is, for the doing of acts which will conduce to performance or observance of such rules."
3. Mason and Murphy JJ (at 213) made the following observations in relation to the power to make interim orders under the precursor of s 164(4): The power to make interim orders, given by sub-s.(2), is likewise not limited to the giving of directions to perform or observe the rules. The terms of the grant to the Court of authority "to make such orders as it thinks fit in relation to the matters to which the proceedings relate" indicate that the Court has a wide discretion as to the form of order to be made. The exercise of this discretion cannot be restricted to the making of orders for the performance or observance of the rules, or for that matter to directions as to matters which will conduce to performance or observance of the rules. The history of sub-s.(2) suggests that in its present form it is designed to enable the Court to make any interlocutory order which will safeguard the position and interests of parties pending a final determination, provided that it bears a relationship "to the matters to which the proceedings relate.
4. In Johnson v Cameron [2002] FCA 948 at [99]-[100], Weinberg J considered the court's power to make interlocutory orders under the predecessor of s 164(4) of the FW(RO) Act and the test for interlocutory injunctions and observed: [99] In the former case [McGee v Sanders (No 2) (1991) 32 FCR 397 at 402-403; [1991] FCA 701 (Gray J)], 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 [Adlam v Noack (1998) 90 IR 31 at 34 - 35], 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". [100] 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.
5. The principles applicable to the grant of interlocutory injunctions are well established. An applicant must demonstrate that there is a prima facie case; and that the balance of convenience favours the grant of an injunction: see Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 at [19] (Gleeson CJ and Crennan J) and [65] (Gummow and Hayne JJ); and Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30 at [21] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ).
6. To satisfy the requirement for a prima facie case it is not necessary for the applicant to establish that it is 'more likely than not' or 'probable' that it will succeed at trial, rather it must demonstrate sufficient prospects to show that the situation does not become irredeemable: O'Neill at [19] and [65].
7. Insofar as the balance of convenience is concerned, it is for the court to weigh up the competing implications of granting or not granting the injunction and to determine what is just in all the circumstances. That is, whether the applicant's inconvenience or injury which may arise from not granting the injunction outweigh the inconvenience or injury to the respondents if the injunction is granted: O'Neill at [19] and [65].
8. It is uncontroversial that the requirements of a prima facie case and the balance of convenience are related enquiries. An apparently strong claim may cause the court to grant an injunction if the balance of convenience is fairly even, and a more doubtful but prima facie claim may still result in an injunction if the balance of convenience tilts strongly in favour of it: Bradto Pty Ltd v State of Victoria (2006) 15 VR 65; [2006] VSCA 89 at [39] (Maxwell P and Charles JA) and Samsung Electronics Co. Ltd v Apple Inc. (2011) 217 FCR 238; [2011] FCAFC 156 at [67] (Dowsett, Foster and Yates JJ).
9. Finally, the applicant also relied on the observation of the Victorian Court of Appeal in Bradto at [35] (Maxwell P and Charles JA) that the court should consider which course of action - granting or denying the injunction - carries the lower risk of injustice if it should turn out to be 'wrong' at trial, observing that the relevant passage has been cited in the following cases: Isignthis Ltd v ASX (2020) 143 ACSR 679; [2020] FCA 567 at [5] (Davies J); 4th Dimension Transport Pty Ltd v Australian Couriers Pty Ltd [2022] FCA 1500 at [16] (McEvoy J); CIP Group Pty Ltd v So (No 3) [2023] FCA 518 at [32] (Derrington J). SERIOUS QUESTIONS TO BE TRIED
10. The applicant contended that the Branch Executive Resolution and National Executive Resolution are invalid and of no effect on three grounds. First, the Branch Executive Resolution is contrary to Rule 58(1). Secondly, the power of the National Executive to pass a resolution under Rule 46(1), in respect of a direction of a Branch Executive to comply with a resolution that has passed, is conditional on the Branch Executive's resolution being valid. Thirdly, the National Executive Resolution is contrary to s 329(1) of the FW(RO) Act. Whether the Branch Executive Resolution is contrary to Rule 58(1)?
11. The applicant submitted that Rule 58(1) sets out the responsibilities that are entrusted to the VLD and expressly allocates to the VLD Committee the "management of those aspects of the [Victorian] Branch's Operations which affect members of the Branch Division [the VLD] only".
12. The applicant submitted that Rule 58(1) must be construed in context, which includes the history of the Divisions and purpose of their existence. The Union was formed in March 1993 when the Australian Railways Union, the Australian Federated Union of Locomotive Enginemen and the Australian Tramways and Motor Omnibus Employees' Association and the National Union of Rail Workers of Australia agreed to amalgamate and form the Union. The VLD reflects the membership of the Australian Federated Union of Locomotive Enginemen. The applicant relied upon extraneous documents to the Rules as part of the context in which the Rules were to be construed, namely, the Scheme for the Amalgamation which provided that "the Branch Divisions will have responsibility for managing their own affairs". Furthermore, the 'Yes Case', that was sent to members of the amalgamating unions prior to voting on whether to approve the proposed amalgamation, which provided that "Members will continue to be served by the same type of Officers through a divisional system". The applicant submitted that Rule 58(1) construed in context does not permit the Branch Executive to interfere with, hinder or obstruct the VLD Committee from dealing with a matter that is expressly entrusted to it by that Rule. Accordingly, it was submitted, the words "Subject to … decisions of the National Executive and the Branch Executive" in Rule 58(1) must be read down so as not to permit the National Executive or Branch Executive to intrude into the management of the Victoria Branch's operations which only affect members of the VLD.
13. The power granted to the Branch Divisional Committee under Rule 58(1) is conditional on two matters: first, the "policies and decisions of the National Council, the National Executive, the Branch Council and the Branch Executive" and, secondly, the power is to be exercised in respect of the Branch's operations which only affect VLD members.
14. The powers conferred on the National Executive and the Branch Executive are broad. The Branch Executive is the "Committee of Management of the Branch" and, pursuant to Rule 43(1), has the "care, control, management and superintendence of the activities of the Branch". In addition, the Branch Executive may exercise all or any of the powers and functions of the Branch Council (other than the power to amend the Rules) between meetings of the Branch Council. The Branch Council has power to "do all things in relation to the Branch which are within the objects of the Union or incidental thereto": Rule 42(1). The National Executive and National Council's powers are similarly broad: see Rules 28(1) and 29(1).
15. The applicant submits that the court should read down the (broad) powers conferred on the National Council, National Executive, Branch Council and Branch Executive to not permit those bodies to intrude on the matters expressly entrusted to the Branch Divisional Committee under Rule 58(1). In my assessment, the applicant's construction does not have proper regard to the Rules in their entirety, which provide for a cascading hierarchy of decision-making, commencing with the National Council as "the highest deliberative body in the Union" (Rule 28(1)), and Branches sitting higher than Branch Divisions in that hierarchy. While the applicant submits that the extraneous documents referred to above support his preferred construction, I regard the contents of those documents as consistent with Divisional Committees being subject to the hierarchy that sit above them under the Rules.
16. Furthermore, the applicant's construction overlooks Rule 43(1) which provides that the Branch Executive is "the Committee of Management of the Branch" with "the care, control, management and superintendence of the activities of the Branch". It seems to me that the Branch Committee could not operate effectively as a Committee of Management if, on the applicant's preferred construction, the Branch Executive was precluded from managing the operations of the VLD.
17. The respondents submitted that the applicant was estopped from making the arguments it made in this case by reason of the decision of Snaden J in Jolly v Sharma [2024] FCA 171. That case involved an argument as to whether the Rules were contrary to s 142(1)(c) of the FW(RO) Act because they failed to guarantee funding to the VLD to carry out its functions. While the issues in that case were different to the issues in the present case, and I do not accept that an issue estoppel arises, in the course of deciding that case Snaden J (at [82]-[85]) made the following observations: [82] The RTBU Rules - like most (if not all) organisational rules - make provision for a hierarchy of executive or quasi-executive bodies. It is plain enough that branches sit higher in that hierarchy than branch divisions. As much is reflected in r 58 of the RTBU Rules (above, [65]), which contemplates that a branch division's management of its own affairs is to be subject to the policies and decisions of (amongst others) a relevant branch executive. [83] That qualification of the obligations that the RTBU Rules visit upon branch divisions is important. The policies and decisions of a branch executive necessarily extend to include policies or decisions concerning the funding of branch divisions. The scope or nature of the managerial responsibilities that the RTBU Rules impose upon branch divisions is, then, necessarily determined in part by reference to any such policies or decisions. [84] Mr Jolly takes issue with that observation. He contends that it "…would be antithetical to the intent of [r 58], to interpret the supervisory role of the Branch Executive to allow it to [assume] functions [that are] explicitly given to the Branch Divisional Committee" (including the general obligation imposed by r 58(1)). Insofar as the RTBU Rules allow that, he says, they would be "'oppressive, unreasonable or unjust' within the meaning of section 142(1)(c)". [85] There may or may not be something in that contention, at least insofar as concerns the capacity of the rule to authorise the wholesale assumption by a branch of what would otherwise be branch divisional responsibility. That, though, is not what is in issue presently. Mr Jolly's complaint is not that the RTBU Rules authorise any such wholesale assumption of responsibility; it is that the rules make no provision guaranteeing branch divisional income that is commensurate with branch divisional responsibility.
18. Those observations accord with my assessment of the proper construction of the Rules.
19. For those reasons, whilst I accept that the applicant has established a prima facie case that the Branch Executive Resolution is invalid on the ground that it is contrary to his preferred construction of Rule 58(1), it is not a strong case.
20. For completeness, the respondents submitted that the present application raises questions of law as to the proper construction of Rule 58(1) which should be resolved by the court in the present application, relying on OD Transport Pty Ltd v Western Australian Government Railways Commission (1986) 13 FCR 270 at 274 (French J). The authorities recognise that it may not be possible or appropriate to resolve such questions in an interlocutory hearing: see for example MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 877 at [35] (Colvin J). The respondents requested that I determine the question as to the proper construction on a final basis. I declined to do so. Having informed the parties that the substantive proceeding is to be allocated to a judge in the Employment and Industrial Relations National Practice Area and that the application had, in the meantime, been allocated to me on an urgent basis, it was not appropriate and I declined to determine the question of the proper construction of Rule 58(1) on a final basis. The power of the National Executive to pass a resolution under Rule 46(1)
21. The applicant submitted that the power of the National Executive to pass a resolution under Rule 46(1), in respect of a direction of a Branch Executive to comply with a resolution that has passed, is conditional on the Branch Executive's resolution being valid. The applicant conceded that this ground is dependent on the court accepting that the Branch Executive Resolution is invalid and of no effect because it is contrary to Rule 58(1). It is unnecessary to consider this ground further in light of my assessment of the applicant's first ground. Whether the National Executive Resolution is contrary to s 329(1) of the FW(RO) Act?
22. The applicant submitted that the National Executive Resolution is invalid and of no effect because paragraph 5 of the National Executive Resolution is contrary to s 329(1) of the FW(RO) Act.
23. Section 329(1) of the FW(RO) Act provides: 329 Costs only where proceeding instituted vexatiously etc. (1) A person who is a party to a proceeding (including an appeal) in a matter arising under this Act must not be ordered to pay costs incurred by any other party to the proceeding unless the person instituted the proceeding vexatiously or without reasonable cause.
24. Paragraph 5 of the National Executive Resolution directs the VLD to pay the reasonable legal costs of the Victorian Branch and the National Office in relation to enforcing the Branch Executive Resolution, including the costs of any court proceeding. The applicant submits that paragraph 5 is inconsistent with s 329(1) because it seeks to achieve what the statute prohibits. The respondents submitted that s 329(1) of the FW(RO) Act limits the court's powers in respect of orders that may be made against litigants, however, it does not affect private arrangements between litigants in relation to costs. The applicant submitted that an arrangement that circumvents s 329(1) is contrary to the legislative intent of that section and is prohibited. No authorities were produced in support or opposition to this ground. While the applicant has established an arguable case on this ground, both parties conceded that the question of the (in)validity of paragraph 5 does not affect the remainder of the National Executive Resolution. Prima facie case
25. Although he faces a number of challenges, I am satisfied that the applicant has a prima facie case that the impugned resolutions are contrary to the Rules and therefore invalid, albeit it is not a strong case.

balance of convenience

1. The applicant submitted that the balance of convenience favours the grant of the interim orders on a number of grounds which are inter-related and effectively focus on the integral role of Mr Marotta. The applicant submits that not granting the interim orders will prejudice the interests of members of the VLD and outweigh any alleged prejudice to the Union from Mr Marotta's ongoing involvement with the VLD.
2. The applicant submitted that if the interim orders are not made, the VLD will be faced with the invidious choice of ceasing its engagement with Mr Marotta, which will adversely impact the representation and services provided to the VLD's members, or maintaining the status quo (of not complying with the resolutions, which he maintains are invalid) and running the risk of steps being taken to suspend the VLD and place it under administration, which is a step that is open to the National Executive under Rule 46(1). The applicant submitted that there is a current need for the VLD to utilise Mr Marotta to assist the VLD and its members because Mr Marotta is currently engaged in a number of major projects and he also assists VLD members on a regular basis in representing them in grievances, disciplinary disputes and so on. The applicant further submitted Mr Marotta's assistance is of particular importance due to current staff shortages in the VLD office.
3. The applicant's evidence was that Mr Marotta is currently assisting on the following major projects:
4. negotiating an enterprise agreement with Pacific National;
5. representation of the VLD on the V-Line consultative committees;
6. the implementation phase of the recently concluded V-Line enterprise agreement;
7. assisting in the negotiation of an enterprise agreement with Aurizon; and
8. assisting in three separate disputes with Metro Trains.
9. It may be accepted that Mr Marotta has detailed knowledge of the locomotive industry, considerable experience in assisting VLD members and made valuable contributions to the VLD and its members in the past. The applicant has, however, overstated the centrality of Mr Marotta's role and the impact of the resolutions on the VLD. In relation to the major projects, the negotiations with Aurizon have concluded and, according to Mr Sharma, were principally conducted by the National Office and affected ten VLD drivers. While the negotiations with Pacific National came to an end in November 2024, and are due to resume in mid to late January 2025, the applicant and another delegate have been involved in the negotiations alongside Mr Marotta. The respondents were unable to say if anyone else is assisting Mr Marotta in the consultative process with V-Line and made no submissions in relation to Mr Marotta's involvement in the disputes with Metro Trains.
10. The applicant says Mr Marotta's experience as a train driver is crucial. The respondents say there are significant resources available to the VLD from within the Branch and the matters on which the VLD require assistance can be handled by other industrial officers employed throughout the Branch or the National Union. Furthermore, Mr Sharma gave an undertaking that if the applicant makes a bona fide request for assistance in relation to VLD matters, he will do his best to meet that request from the staff of the Victorian Branch, interstate Branch or the National Office. While there was no evidence that the applicant has requested assistance from the Branch or National Officials, the applicant says that the respondents' offer will not be of assistance to the VLD because of a dispute that has caused 'bad blood' between the various Branch Divisions.
11. The VLD comprises over 1,200 members who are train drivers or other operators. While the VLD may have recently lost a number of local delegates who would ordinarily assist with industrial issues, there was no evidence that enquiries have been made and it has not been, and will not be, possible for the VLD to secure replacements or other assistance from its members to fill the gap caused by the loss of other delegates or Mr Marotta.
12. The VLD employs three staff members in the VLD office and has two full time paid officials, one of whom is the applicant. Two of the three employees are on leave and the dates on which they expect to return to work are not presently known or indeterminate due to their particular circumstances. There was no evidence that the applicant has requested assistance to obtain support to deal with the current staff shortages in the VLD office. At the hearing, after I raised the matter, Mr Sharma gave an undertaking that if a request is made, he will do his best to provide funding to cover the employment of additional staff on a short-term basis. That would go some way to addressing the impact of the current staff shortages and the resolutions.
13. The prima facie case is not a strong one. In those circumstances, the balance of convenience should strongly favour the grant of the interim orders. For the above reasons, I am not persuaded that the applicant has adduced sufficient evidence to establish that the balance of convenience strongly favours the grant of interim orders.

conclusion

1. I am satisfied that there is a prima facie case that the impugned resolutions are invalid, but I consider that the case is not a strong one. However, the applicant has not established that the balance of convenience strongly favours the grant of the interim orders. For the reasons set out above, I would dismiss the application. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Neskovcin.

Associate: Dated: 20 December 2024 SCHEDULE OF PARTIES VID 1213 of 2024 Respondents Fourth Respondent: VICTOR MOORE Fifth Respondent: PHILIP ALTIERI Sixth Respondent: KEITH MCMAHON Seventh Respondent: DARREN GALEA Eighth Respondent: GREG TATNELL Ninth Respondent: NOEL MORRIS Tenth Respondent: TRENT HOWARD Eleventh Respondent: WILLIAM LEKKAS Twelfth Respondent: LEANNE HOLMES Thirteenth Respondent: JAMES STYLES Fourteenth Respondent: PETER ALLEN Fifteenth Respondent: TOBY WARNES Sixteenth Respondent: BYRON CUBIT Seventeenth Respondent: DARREN PHILLIPS Eighteenth Respondent: JOSHUA DEKUYER Nineteenth Respondent: CRAIG TURNER Twentieth Respondent: FARREN CAMPBELL Twenty-First Respondent DAVE BABINEAU Twenty -Second Respondent DIEGO ESQUERIA Twenty -Third Respondent CATHY BIRCH Twenty -Fourth Respondent TOM BROWN Twenty -Fifth Respondent STEF WHYTE Twenty -Sixth Respondent STEVE MCEVOY Twenty -Seventh Respondent CLAIRE MCKENNA Twenty - Eighth Respondent BRIAN PENZA Twenty -Ninth Respondent BRYAN EVANS Thirtieth Respondent DAVID PATTON Thirty - First Respondent JOE DENNIS Thirty -Second Respondent JOHN NICOLOPOULOS Thirty - Third Respondent PETER VEIS Thirty -Fourth Respondent CATHERINE NOONE Thirty -Fifth Respondent CHRIS MCMAHON Thirty -Sixth Respondent FRANK PAVIC Thirty -Seventh Respondent JOHN ANTONOPOULOS Thirty -Eighth Respondent JOHN SAW Thirty -Ninth Respondent PAUL JUMPERTZ Fortieth Respondent RUPERT BRAGANZA Forty - First Respondent WAYNE HICKS Forty- Second Respondent TARIK KOC