Kingham v Sutton

BETWEEN: MARTIN KINGHAM, MARTIN O'MALLEY, KEVIN REYNOLDS and GREG SIMCOE

AND: JOHN SUTTON, VIC FITZGERALD, ALBERT LITTLER, BILL OLIVER, LINDSAY FRASER, ALEX BUKARICA, PETER McCLELLAND, TREVOR ZELTNER, PAUL WATERS, ANDREW FERGUSON, WALLY TROHEAR, GARRY HOWCROFT, TONY BENSON, BEN CARSLAKE, JOE McDONALD, GEORGE WASON and TREVOR MELKSHAM

REASONS FOR JUDGMENT 1 The applicants have applied pursuant to s 209 of the Workplace Relations Act 1996 (Cth) ("the Act") for a rule calling upon the first respondents to show cause why certain orders should not be made requiring the first respondents to perform and observe the Rules of the Construction and General Division of the Construction, Forestry, Mining and Energy Union ("the Union"). The application has come on for hearing with a considerable degree of urgency due to interlocutory relief sought until the hearing and determination of the proceeding against the first respondents and the second respondent, an Industrial Registrar of the Australian Industrial Relations Commission ("the Commission"). Because of the interlocutory relief which was sought, I required notice of the application to be given to the respondents, notwithstanding that the primary application for a rule to show cause is usually made ex parte. 2 The first applicant ("Mr Kingham") is the secretary of the Construction and General Division, Victorian Building Unions Divisional Branch of the Construction and General Division of the Union. He and the other applicants are members of the Divisional Executive of the Construction and General Division of the Union. The first respondents are also members of the Divisional Executive of the Construction and General Division of the Union. Under the Rules of the Construction and General Division of the Union ("the Rules") the election of divisional office bearers is made every four years at a biennial Divisional Conference. An election is due to be held at the biennial Divisional Conference to be held later this year, after September, by virtue of the provisions of the Rules whereby nominations close fourteen days after the last Friday in September. 3 On 7 March 2001, the National Secretary of the Construction and General Division, Mr John Sutton, sent to members of the Divisional Executive ballot papers for a postal ballot for a vote on a proposal to alter the Rules so as to allow elections at the Divisional Conference to be held earlier in the year at a time fixed by the Divisional Executive. The ballot was to remain open until close of business on 14 March. Mr Kingham wrote to Mr Sutton on 9 March objecting to the postal ballot on the basis that it was not allowed under rule 26 of the Rules. He said rule 26 was subject to a limitation that postal ballots should only be used for urgent matters. Mr Kingham said that by reason of the matters he raised about the proper construction of rule 26, any resolution passed by the ballot would be null and void and of no effect. 4 On Friday 9 March, Mr Sutton wrote to the Commission applying to have the rule changes, which were the subject of the ballot, certified pursuant to s 205 of the Act. Apparently, by this time, a majority in favour of the resolutions had recorded their votes. That letter was apparently received by the Commission on 12 March. 5 On 12 March, the Queensland, South Australia, Western Australia and Victorian divisional branches wrote to Mr Sutton sending resolutions which had been passed by their respective branches to hold a referendum on whether the Divisional Executive of the Construction and General Division should make necessary rule changes so that from and including elections due in 2001 the offices of Divisional President, Divisional Secretary and two Divisional Assistant Secretaries were to be filled by a direct secret ballot of financial members of the Division. 6 On 13 March, Mr Sutton, by letter to Mr Kingham, refused to call off the postal ballot and said that the postal ballot was valid. He said that he had called a Divisional Executive meeting for 21 and 22 March. 7 On 15 March, Mr Kingham sent a letter by facsimile to Mr Sutton asking for the referendum arrangements to go on the agenda for the Divisional Executive meeting to be held on 21 and 22 March. On the same day, Mr Sutton told Mr Kingham that the resolutions, the subject of the postal ballot had been carried. On that day, Mr Kingham wrote to Mr Sutton seeking a review by the Divisional Conference of the Divisional Executive's decision by the postal ballot. The review was sought pursuant to rule 8(x)(g) of the Rules. Mr Kingham also asked Mr Sutton to give an undertaking to the effect that no steps would be taken to have the rule changes certified until they had been reviewed by the Divisional Conference as requested in his letter. On 16 March, Mr Kingham received a letter from Mr Sutton declining to give the undertaking. 8 On 16 March, I made an order in an earlier proceeding, which was commenced on that day, restraining the members of the Divisional Executive from submitting the rule changes, which had been the subject of the postal ballot, to the Industrial Registrar for certification, or otherwise giving effect to them. At the same time, I granted a rule calling on the first respondents to show cause why orders should not be made for the performance of the Rules. The Industrial Registrar had indicated that she would not certify the rule changes pending the determination of the Rule which I granted that day. That order was varied on 21 March to allow the Divisional Executive to consider and, if thought fit, pass resolutions rescinding the resolutions passed by the postal ballot and proposing the same resolutions at the Divisional Executive's meeting on 21 and 22 March. 9 An executive meeting of the Construction and General Division of the Union commenced on 21 March and continued into 22 March. On the first day, a motion was passed to the effect that: "… Divisional Executive determines that a meeting of the Divisional Conference is to be brought forward to 8 May or such earlier time as it can be practically organised and that the Divisional Secretary be authorised to take all steps necessary to facilitate such a meeting, including postal ballots of the Divisional Executive, and that the Conference in question conduct the elections for Divisional Officer positions." When that motion was proposed and seconded, Mr Kingham objected to the motion being passed on the basis that the rule changes bringing forward the executive elections had not yet been certified and so it was not possible to bring forward the elections. That matter was discussed and after discussion the motion was passed. 10 On the afternoon of 21 March, Mr Kingham delivered a petition signed by approximately 8,700 financial members of the Union seeking the calling of a referendum, and moved motions to enable the referendum to be held as soon as possible on a question relating to the changing of the Rules to enable direct election of the Divisional President, the Divisional Secretary and two Divisional Assistant Secretaries. The question was: "Should the Divisional Executive of the CFMEU's Construction and General Division forthwith make all necessary rule changes so that, as from and including the elections due in 2001, the offices of Divisional President, Divisional Secretary and the two Divisional Assistant Secretaries must all be filled by direct secret ballot of all the financial members of the Division?" 11 The motions moved by the first applicant were put and lost. A motion was then put by Mr Sutton in relation to the petition that had been received, the motion being that a request be made to the Divisional Secretary to take legal advice in relation to the issues raised by the petition and the Divisional Executive's obligations in relation to it. That motion was passed. 12 On the next day, 22 March, a motion was moved and seconded to rescind the resolutions passed by the postal ballot which concluded on 14 March, to amend the Rules to the same effect and to direct the National Secretary, or any other person authorised by him, to seek urgently the certification of the Rule changes. The resolution proposed was in the following terms: "This Divisional Executive in meeting assembled: 1. Notes that proceedings have been commenced relating to the process of the rule change passed by postal ballot commencing 7 March 2001; 2. Wishes to avoid unnecessary and expensive litigation for no ultimate practical purpose; 3. Notes the amended form of the interim orders of the Court and, in particular, the amendment in effect allowing this Divisional Executive at this meeting to rescind the postal ballot changes and proposing anew those changes at this meeting. Resolves 4. To rescind the resolutions amending the Divisional Rules adopted by postal ballot conducted by the Divisional Secretary commencing 7 March 2001, AND 5. To amend the Divisional Rules in the following manner: [Detailed amendments were set out] Further, the Divisional Executive directs the Divisional Secretary, or any person authorised by him, to seek urgently the certification of the above rule change in order that the Divisional Executive can act to overcome the paralysing effect that the current crisis is having upon the day to day operations of the Division, and to press upon the Industrial Registrar such urgency." That motion was debated and carried. 13 Mr Kingham then moved a motion seeking to have the Divisional Executive resolve that a special Divisional Executive meeting be held within ten days and that the Divisional Secretary be directed to report the results of checking the national financial membership roll in relation to the petition. I take it that the motion was designed to have the petition implemented and carried into effect. That motion was defeated. 14 The applicants applied later that afternoon (22 March) pursuant to s 209 of the Act for a rule calling upon the respondents to show cause why the Rules should not be performed or observed in four respects. The first respect related to the resolution bringing forward the elections and requiring the elections to be held at the Divisional Conference on or before 8 May 2001. It was said that the resolution should be declared void. The basis for the order was said to be that the resolution gave effect to Rules not yet certified under s 205 of the Act. It was also said that the resolution was in breach of the orders which I made on 16 March and varied on 21 March. 15 The second respect in which the rule to show cause was sought was in relation to the resolution that the Divisional Executive refer for review by a Divisional Conference the resolution passed on 22 March to amend the Rules to enable the elections to be brought forward. The basis for this order was that it was said the Divisional Conference had the right to review the decision by the Divisional Executive to change the Rules, reference being made to rule 9.15 and rule 8(x)(g). 16 The third respect in which the rule to show cause was sought was that the Divisional Executive refrain from submitting the rule amendments passed on 22 March to the Industrial Registrar for certification until the completion of the review contemplated by the Rules. The basis for this order was said to be that there was a right to have the decision passed by resolution of the Divisional Executive reviewed under the Rules and that certification, although it allows the review, makes it undesirable that there be, in colloquial terms, chopping and changing if there is to be an attack on the resolution. 17 The final matter in respect of which the Rule to show cause was sought was in relation to the arrangements which are to be made to hold the referendum, reliance being placed upon rule 10. It was said that the referendum should be pursued as a matter of urgency. 18 Mr Rothman SC, who appeared for the first respondents, Mr John Sutton, Mr Peter McLelland, Mr Andrew Feguson, Mr Wally Trohear and Mr George Wason, submitted in general terms that there was no substantive basis on which the Rules to show cause should be granted. 19 I am satisfied that each of the four matters in respect of which the rule to show cause was sought is such that the rule ought to be granted. Each raises a serious issue to be tried, particularly having regard to the content of the particular Rules on which reliance is placed by the applicants. 20 The applicants also sought interlocutory relief until the hearing and determination of the proceeding or further order, restraining the first respondents from taking any or any further steps to have the rule amendments passed on 22 March certified by the Industrial Registrar ,and from otherwise giving effect to the rule amendments until after the completion of the review by the Divisional Conference, and restraining the Industrial Registrar from taking any steps to certify the rule amendments. 21 The application came before the Court very quickly and the respondents had insufficient time to give the matter the full consideration which it merits. Mr Rothman submitted that the applicants could not point to any irremediable prejudice if the interlocutory relief sought was not granted, but I consider that the haste with which the matter has come before the Court gives rise to the approach considered by Hayne J in Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (1998) 153 ALR 641. At 641 his Honour said: "To adopt and adapt the words of Dixon CJ in Tait v R, without giving consideration to, or expressing any opinion as to the grounds on which the proposed application is based, but entirely so that the authority of this court may be maintained and it may have an opportunity of considering the application, there will be a stay now of the orders I have earlier mentioned, if the applicants proffer an undertaking as to damages in common form and give suitable undertakings as to issue and service of both an application for special leave to appeal and an application for stay pending its hearing. The stay now ordered will be until the hearing and determination of the proposed application for stay or further order. 22 The principle referred to by Hayne J is not limited to those circumstances where the substantive application made will be rendered futile if no interlocutory order is made. If the Rules are certified, it is arguable that they may be activated in such a way that the opportunity of the applicants to have the Divisional Conference review the rule changes before any election for office bearers is put in train may be impaired or diminished. That matter is not free from doubt. In any event, having regard to the time frame proposed by the resolution to have a meeting of the Divisional Conference held on 8 May, or such earlier time as it can be practically organised, and having regard to the fact that the resolution authorises the Divisional Secretary to take all steps necessary to facilitate such a meeting, including a postal ballot of the Divisional Executive, it is undesirable that those steps be taken while there is still a possibility that the situation may change. 23 For these reasons, I am prepared to grant the interlocutory relief sought against the first respondents, but only for a short time to enable the first respondents to give the matter proper consideration and to make such further submissions as they may be advised. I was informed that the first respondents had already submitted the rule changes to the Industrial Registrar for certification, and that the Industrial Registrar had indicated that she would only hold her hand until 11.00 am on 23 March. Thereafter, she would proceed to consider certification of the rule changes, unless restrained by court order. Although the first respondents have submitted the Rules for certification, it is appropriate that they be restrained from taking any further steps in relation to certification, as the position may arise that they may be asked to provide further information to enable certification. 24 The injunctive relief sought against the Industrial Registrar gives rise to a further issue not raised by the injunction sought against the first respondents. Mr Rothman submitted that I have no jurisdiction to grant an injunction against the Industrial Registrar. He relied on s 39B(1) and (2) of the Judiciary Act 1903 (Cth) which provide: "(1) Subject to subsections (1B) and (1C), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. … (2) The reference in subsection (1), (1B) or (1C) to an officer or officers of the Commonwealth does not include a reference to - (a) a person holding office under the Workplace Relations Act 1996, or the Coal Industry Act 1946; or …" As the Industrial Registrar holds office under the Act, it was said that I have no jurisdiction to grant injunctive relief against her. It may be that I have no jurisdiction to grant an injunction against the Industrial Registrar, but that is not to say that I do not have power to do so in respect of a matter where I am otherwise given jurisdiction to deal with the matter. 25 It is important in this context to distinguish between jurisdiction and power. I adopt and adapt with respect the observation of Northrop J in Australian Securities Commission v Melbourne Asset Management Nominees Pty Ltd (Receiver and Manager Appointed) (1994) 49 FCR 334 at 346, where his Honour said: "In these reasons the word 'jurisdiction' is used to describe the authority which a court has to decide matters that are litigated before it. The word 'power' is used to describe the method by which a court exercises a jurisdiction conferred upon it. A statute may, by express provision, confer a power on a court. In addition, a power may, arise by implication or may be incidental and necessary to exercise of the jurisdiction or power so conferred." 26 Under s 209(1) of the Act, a member of an organisation can apply for what is called "an order under this section", which is defined in ss (9) as: "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." The power to make interim orders is set out in s 209(4), which provides: "At any time after the making of an application for an order under this section, the Court may make such interim orders as it considers appropriate, and, in particular, orders intended to further the resolution within the organisation concerned of the matter the subject of the application." These powers have been construed widely. In R v Joske; Ex parte Shop Distributive and Allied Employees' Association (1976) 135 CLR 194, the High Court was concerned to construe the predecessor provisions to ss 209(1), (4) and (9) of the Act. At that time, s 141 of the Conciliation and arbitration Act 1904 provided: "(1) The Court may, upon complaint by any member of an organization and after giving any person against whom an order is sought an opportunity of being heard, make an order giving directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules. (2) At any time after proceedings under this section have been instituted (including proceedings instituted before the commencement of this sub‑section), the Court may make such interim orders as it thinks fit in relation to the matters to which the proceedings relate." At 212 to 213 Mason and Murphy JJ made the following observations: "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. The court was there concerned with the provisions of s 58E of the Commonwealth Conciliation and arbitration Act 1904‑1934 which conferred upon the arbitration Court power to make an order 'giving directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules', the very words now contained in s 141(1). The power to make interim orders given, by sub‑s (2), is likewise not limited to the giving of directions to the perform or observe 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 the 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 this proceeding relate'." (See also Tighe v Watson (1998) 86 IR 44 at 48, Construction, Forestry, Mining & Energy Union v Yallourn Energy Pty Ltd [2000] FCA 1580.) 27 The distinction between the jurisdiction and the power of the Federal Court to grant injunctive relief was highlighted in Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1. Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ said at 29: "Once the jurisdiction conferred on the Federal Court by the Act is invoked, that Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) to make 'orders of such kinds, including interlocutory orders … as the Court thinks appropriate'. That power may be exercised in any proceeding in which the Federal Court has jurisdiction unless the jurisdiction invoked is conferred in terms which expressly or impliedly deny the s 23 power to the Court in that class of proceeding. It cannot be invoked to grant an injunction where the Court acquires its jurisdiction under a statute which provides an exhaustive code of the available remedies and that code does not authorise the grant of an injunction. But this is not such a case." 28 In short, the submission made by Mr Rothman directs attention to jurisdiction rather than power. Once jurisdiction is found outside s 39B of the Judiciary Act, consistently with the authorities to which I have referred, the Court has power to grant interlocutory injunctive relief against an Industrial Registrar if it considers it appropriate to do so. As it appears that the application for certification has been made, and the Industrial Registrar proposes to enter upon that matter after 11.00 am today, it is appropriate in my view to grant interlocutory injunctive relief having regard to my earlier conclusions. 29 I am satisfied that I have the jurisdiction to do so, for the reasons to which I have already referred. However, for the reasons already advanced, I am only prepared to grant interlocutory relief for a short time to enable the matter to be fully argued. I therefore propose to order that until 4.30 pm on 29 March 2001 or further order the first respondents be restrained from taking any or any further steps to have the rule amendments passed by resolution of the Divisional Executive on 22 March 2001 certified by the Industrial Registrar and from otherwise giving effect to the rule amendments and that the Industrial Registrar be restrained from taking any or any further steps to certify those rule amendments. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Counsel for the Applicant: Mr H Borenstein and Mr L Armstrong