Kingham v Sutton [2001] FCA 400 | Case summary

REASONS FOR JUDGMENT 1 On 22 March 2001 the applicants 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"). At the same time, the applicants applied for urgent interlocutory relief 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"). On 23 March 2001, I granted a rule to show cause why the orders sought should not be made (par 15 below). Because of the urgency with which the application for interlocutory relief came on for hearing, I was only disposed to grant interlocutory relief for a short time to enable the first respondents to present a more detailed and considered submission. I granted limited interlocutory relief until 4.30pm on 29 March 2001, or further order, restraining the first respondents from taking any, or any further, steps to have the rule amendments, the subject of the proceeding, certified by the Industrial Registrar, or otherwise giving any effect to the rule amendments. I ordered that the Industrial Registrar be restrained until 4.30pm on 29 March 2001, or further order, from taking any steps to certify those rule amendments. On 29 March 2001, I extended those interlocutory orders until further order. The background and circumstances leading to the granting of the rule to show cause and to the grant of the limited interlocutory relief are set out in my earlier reasons for judgment: Kingham v Sutton [2001] FCA 328. 2 Further affidavits have been filed by the applicants and the first respondents relating to the issues which have arisen, and I only refer to those affidavits to the extent to which it may be necessary to amplify, correct or explain any of the background and circumstances set out in my earlier reasons for judgment. 3 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 Divisional Rules") the election of divisional office bearers is held 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 Divisional Rules whereby nominations close fourteen days after the last Friday in September. 4 On 7 March 2001, the National Secretary of the Construction and General Division, Mr John Sutton (the first named first respondent), sent to members of the Divisional Executive ballot papers for a postal ballot for a vote on a proposal to alter the Divisional 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 the 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 Divisional Rule 26. He said Divisional 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 Divisional Rule 26, any resolution passed by the ballot would be null and void and of no effect. 5 On Friday 9 March, Mr Sutton wrote to the Commission applying to have the rule amendments, which were the subject of the ballot, certified pursuant to s 205 of the Act. Apparently, by this time, a majority of members of the Divisional Executive in favour of the resolutions had recorded their votes. That letter was apparently received by the Commission on 12 March. 6 On 12 March, the Queensland, South Australian, Western Australian and Victorian Divisional Branches wrote to Mr Sutton sending resolutions, which had been passed by their respective Divisional Branches Management Committees pursuant to Divisional Rule 10, to hold a referendum on whether the Divisional Executive of the Construction and General Division should make all necessary rule amendments, so that from and including the elections due in 2001, the offices of Divisional President, Divisional Secretary and two Divisional Assistant Secretaries must be filled by a direct secret ballot of all the financial members of the Division. 7 On 13 March, Mr Sutton, by letter sent to Mr Kingham, refused to call off the postal ballot and said that it was valid. He said that he had called a Divisional Executive meeting for 21 and 22 March. 8 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 made by the postal ballot. The review was sought pursuant to Divisional Rule 8(x)(g). Mr Kingham also asked Mr Sutton to give an undertaking to the effect that no steps would be taken to have the rule amendments 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. 9 On 16 March, I made an order in an earlier proceeding: Kingham v Sutton (No V196 of 2001), restraining the members of the Divisional Executive from submitting the rule amendments, 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 and observance of the Divisional Rules. The Industrial Registrar had indicated that she would not certify the rule amendments pending the determination of the rule which I granted. 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. 10 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 in the following terms: "… 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 amendments bringing forward the executive elections had not yet been certified so that it was not possible to bring forward the elections. That matter was discussed and after discussion the motion was passed. 11 On the afternoon of 21 March, Mr Kingham delivered a petition said to be 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 Divisional 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?" (This question was in the same terms as the question contained in the resolutions sent by the four Divisional Branches to Mr Sutton on 12 March). 12 The motions moved by Mr Kingham were put and lost. A motion was then moved by Mr Sutton in relation to the petition that had been received 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. 13 On the next day, 22 March, a motion was moved and seconded to rescind the resolutions passed by the postal ballot which had concluded on 14 March, to amend the Divisional 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 amendments. 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. 14 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. 15 On 23 March 2001, I ordered, pursuant to s 209 of the Act, that the respondents show cause why the following orders should not be made: "1. An order pursuant to s 209 of the Workplace Relations Act 1996 (Cth) ("the Act") that the first respondents and each of them perform and observe the Rules ("the Rules") of the Construction, Forestry, Mining and Energy Union, Construction and General Division ("the Division") by treating as null and void and of no effect the resolution of the Divisional Executive of the Division passed on 21 March 2001 requiring that elections for the offices of Divisional Officers of the Division referred to in rule 9.2 of the Rules be held at a Divisional Conference of the Division to be held on or before 8 May 2001. 2. An order pursuant to s 209 of the Act that the first respondents and each of them perform and observe the Rules by forthwith referring for review by a Divisional Conference of the Division the resolutions of the Divisional Executive of the Division passed on 22 March 2001 to amend the Rules in relation to the calling and holding of biennial Divisional Conferences, the holding of elections and the taking up of offices after elections at Divisional Conference, and associated matters, referred to in pars 31 and 32 of Kingham's affidavit ("the rule amendments"). 3. An order pursuant to s 209 of the Act that the first respondents and each of them perform and observe the Rules by refraining, by themselves, their officers, servants or agents, from submitting the rule amendments to the Industrial Registrar for certification, taking any other steps to have the rule amendments certified by the Industrial Registrar, or otherwise giving any effect to the rule amendments, until after the completion of the review by Divisional Conference referred to in order 2 above. 4. An order pursuant to s 209 of the Act that the first of the first respondents ("Sutton") forthwith make all necessary arrangements for the holding of a referendum of the financial members of the Division as soon as possible on the following question: '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?' 5. An order pursuant to s 209 of the Act that the first respondents and each of them perform and observe the Rules by refraining from holding the elections for the offices on the Divisional Executive referred to in rule 9.2 of the Rules which are due in 2001 until after the completion of the referendum referred to in order 4 above." 16 The issues arise in the context of elections for positions on the Divisional Executive which under the Divisional Rules, in their present certified form, are to be held sometime after September this year. It is helpful to understand the hierarchy of decision‑making in the Construction and General Division of the Union for which there are Divisional Rules separate from the Union Rules. Divisional Rule 8(i) provides that: "The supreme governing body of the Division shall be the Divisional Conference." The Divisional Conference consists of delegates: Divisional Rule 8(ii), and the number of delegates depends upon the application of the formula found in Divisional Rules 8(iii) and (iv). The election of delegates to the Divisional Conference is a separate and distinct process from the election of persons to the Divisional Executive. The procedure for the election of delegates to the Divisional Conference is found in rule 17(iii) of the Rules of the Union, not the Divisional Rules. Delegates to the Divisional Conference are elected for a term of four years: rule 17(i) of the Union Rules. 17 Rule 18 of the Union Rules provides, relevantly: "(i) There shall be a Divisional Executive composed in accordance with Divisional Rules and elected in accordance with such Divisional Rules. (ii) Every Divisional Executive shall be elected either: (a) by and from the Divisional Conference; or (b) by direct ballot of the financial members of the Division." 18 The Divisional Conference sits at the apex of the hierarchy of the Division. It has power "to confirm, over‑rule or otherwise deal with decisions of the Divisional Executive or Divisional Branches" of the Division: Divisional Rule 8(x)(g), and has power "to make, alter and rescind rules" of the Division or any Divisional Branch: Divisional Rule 8(x)(k). Divisional Rule 8(xvi) provides, relevantly: "The Divisional Conference shall have and exercise all of the powers of the Divisional Executive and shall deal with any matter or matters referred to it by the Divisional Executive." 19 Elections for the Divisional Executive are held every four years (commencing in 1993): Divisional Rule 9.2, and the process for conducting those elections commences in September of the election year. Pursuant to Divisional Rule 9.5, nominations are to be called by the returning officer on the last Friday in September in the year of the Divisional Conference. The Divisional Executive is given extensive powers. Divisional Rule 9.15 provides: "The Divisional Executive shall, have and may exercise, subject to the review of its actions by Divisional Conference, the care, control, superintendence, management and administration in all respects of the affairs, business, Divisional funds and the property of the Division and have and exercise all of the powers of the Divisional Conference, and, without limiting the generality of the foregoing it may - (a) Interpret and enforce the general policy of the Division; (b) Control and conduct the business and affairs of the Division; … (n) To make, alter and rescind rules." (emphasis added) 20 The Divisional Rules also provide for the opportunity for referenda to be held within the Division. Divisional Rule 10(i) provides: "On a decision of a majority Divisional Branches, or Divisional Branches whose membership constitutes a majority of the members of the Division or on receipt of a petition signed by not less than 10 per cent of the financial members of the Division, Divisional Executive shall take a referendum of the whole of the members of the Division upon the matter or matters submitted by the Divisional Branches or members. A decision reached by a majority of the actual votes recorded shall be binding on the Divisional Conference Divisional Executive and the members of the Division." Provision is also made in Divisional Rule 10 for the manner in which any referendum is to be conducted. 21 The effect of the rule amendments which were passed by resolution of the Divisional Executive on 22 March 2001 is to enable elections for positions on the Divisional Executive to be brought forward earlier in the year. 22 Within their claim to have the Divisional Rules performed and observed, the applicants challenged three aspects of the conduct of the Divisional Executive: (a) the resolution bringing forward the Divisional Conference and elections for the Divisional Executive to 8 May 2001, or such earlier time as can be practically organised; (b) the resolution amending the Divisional Rules so as to enable elections for the Divisional Executive to be held earlier than is presently provided by the certified rules; (c) the perceived failure of the Divisional Executive and in particular, the Divisional National Secretary, to arrange for the holding of the referendum which has been requested. 23 As the present application before the Court is for interlocutory relief pending the hearing and determination of the rule to show cause why an order should not be made that the first respondents, speaking generally, perform and observe the Divisional Rules, I am not required to reach a final conclusion on the matters before me. Rather, I am to determine whether there is a serious question to be tried arising out of the issues raised, and where the balance of convenience lies in determining whether injunctive relief should be granted. I also take into account that there is a controversial issue as to the manner in which, or the time at which, elections of executive officers of the Division are to be held and that it may be desirable to maintain the status quo which is, on the balance of convenience, appropriate to be maintained until the issue of the certainty of the election process can be finally resolved: Slater Walker Superannuation Pty Ltd v Great Boulder Gold Mines Ltd [1979] VR 107 at 110; Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (1998) 77 FCR 478 at 490. 24 There is obviously a difference of opinion between various members of the Construction and General Division and between various branches as to when, and how, elections for the Divisional Executive should be held this year. It is no part of my task to enter into that debate. The first respondents submitted that the rule amendments sought to be effected by the Divisional Executive give the Executive greater flexibility in the fixing of the timing of the biennial Divisional Conference of the Division. That may be so, but I do not enter upon a consideration whether that is desirable. It is no part of my task, at this point, to pass judgment on the structure and nature of the rules of the Division or the Union. I limit myself to a consideration of whether there is a serious question to be tried that the Divisional Rules, as presently certified, are not being performed and observed and whether interlocutory and injunctive relief should be granted to ensure the effective exercise of the jurisdiction committed to me under s 209 of the Act: Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 33. 25 Subject to any consideration that might arise under s 196 of the Act, it is not for me to form a view on the desirability or otherwise of any particular rule or amendment to a rule. I adopt, with respect, the observations of Deane J, sitting as a member of a Full Court of the Federal Court in Municipal Officers' Association of Australia v Lancaster (1981) 54 FLR 129 at 164‑165: "The constraints and restrictions imposed, by positive and negative requirements of the Act and regulations, upon the freedom of the members of an organization to select, for themselves, the rules which they consider appropriate for their particular organization, are real and significant. It cannot, however, be too strongly stressed that, subject to those constraints and restrictions, the content of the rules of a registered organization is primarily a matter for the members (Watson v. Australian Workers' Union [(1967) 10 FLR 347]; Cassidy v. Amalgamated Postal Workers' Union of Australia [(1967) 11 FLR 124]; Wiseman v. Professional Radio and Electronics Institute of Australasia [(1978) 35 FLR 24]; Re Airline Hostesses' Association [(1980) 48 FLR 214]. This Court has no authority generally to supervise the content of the rules or to require that the rules comply with what those constituting the court might see as preferable, desirable or ideal. To put the matter differently, it is for the members, or those entrusted by the members in that regard, to decide the content of the rules. The function of this Court is to determine, in accordance with ordinary judicial procedure, whether some provision or provisions of the rules adopted by, or on behalf of, the members can properly be described not merely as undesirable but as oppressive, unreasonable or unjust. ..." See also Doyle v Australian Workers' Union (1986) 12 FCR 197 at 205‑206. 26 I turn to the resolution passed on 21 March 2001 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." At the time this resolution was passed, the relevant certified Divisional Rule 9.5 provided that nominations for positions on the Divisional Executive were to be called on the last Friday in September. At the time of the resolution, the rule amendments, which had been the subject of a postal ballot, had not been certified and their certification was the subject of the restraining order I made on 16 March 2001. 27 The first respondents submitted that the resolution was not a resolution fixing the date of the Divisional Conference for 8 May 2001, but was rather an indication of the intention of what was proposed. Mr Sutton filed an affidavit, but he made no reference to the first respondents' attitude towards, or view of, the resolution or its meaning. The first respondents, through their counsel, made it clear that they did not regard the resolution as effective to fix the date of the Divisional Conference for 8 May 2001. Nevertheless, the resolution is clear in its terms and is not ambiguous. It constitutes a determination that the Divisional Conference "is to be brought forward to 8 May or such earlier time as it can be practically organised" and that that Conference conduct the elections of the Divisional officer positions. There is presently no certified rule which justifies or validates such a resolution, and the rule amendments passed on the following day, which might have provided a basis for the resolution if they had been passed earlier, have not been certified in accordance with s 205(1) of the Act and so have not taken effect. 28 Although the first respondents did not seek to argue that the resolution actually fixed the date for the Divisional Conference for 8 May 2001, or earlier if possible, the resolution still stands. There is no contest between the parties as to whether the resolution passed on 21 March bringing forward the Divisional Conference to 8 May 2001, or such earlier time as can be practically organised, is valid and effective. Senior Counsel for the respondents said that if undertakings were required, he was instructed that undertakings could be given that the resolution would not be given effect as a decision fixing the date of the Divisional Conference as 8 May 2001 or earlier if possible. If such an undertaking is offered, no injunction is required. If the undertaking is not forthcoming, then I will grant interlocutory relief restraining the first respondents from acting upon the basis that such resolution has been validly passed. 29 I turn to the resolution passed on 22 March 2001 rescinding the amendments adopted by the postal ballot and amending the Divisional Rules in the manner set out in the body of the resolution (par 13 above). 30 The applicants seek injunctive relief restraining the first respondents from taking any steps to have those rule amendments certified by the Industrial Registrar, and restraining the Industrial Registrar from certifying the rule amendments until after the completion of a review of the resolution by the Divisional Conference. 31 Whether Mr Kingham made a request, at the time the motion was debated or after the resolution was passed, that the resolution be reviewed by the Divisional Conference, the first respondents accept that Mr Kingham, in a letter to Mr Sutton dated 27 March 2001, sought a review of the Divisional Executive's decision pursuant to Divisional Rule 8(x)(g). The first respondents do not challenge the proposition that there is to be a review of the resolution amending the Divisional Rules, but they said that it should be reviewed at the next Divisional Conference, and that there was no warrant or justification for holding up the certification of the rule amendments and their implementation pending the review. 32 The first respondents correctly pointed out, and the applicants acknowledge, that there is no Divisional Rule or Union Rule authorising a stay of the operation of the rule amendments pending the review by the Divisional Conference. The applicants do not seek to submit that there can be implied into the Divisional Rules a provision that there is to be a stay on the operation of the rule amendments pending a review by the Divisional Conference. Authority is against the proposition that one can find implied rules in certified rules: Porter v Dugmore (1984) 3 FCR 396 at 407 per Smithers J; Scott v Jess (1984) 3 FCR 263 at 283‑284 per Gray J. 33 Rather, the applicants submitted that the express reservation of a power in the Divisional Conference to review decisions of the Divisional Executive carried with it an implied limitation on the implementation by the Divisional Executive of the decision to be reviewed. It was submitted that there was an implied limitation that if a request for a review of a decision of the Divisional Executive was properly made, the Divisional Executive would not act upon or implement the decision until the review provided by Divisional Rule 9.15 was held. It was submitted that unless such an implied limitation was found in the Divisional Rules, the opportunity or right to review a decision of the Divisional Executive would be rendered nugatory and ineffective because by the time the Divisional Conference came around to reviewing the decision, the decision would be beyond recall or withdrawal. An example relied upon by the applicants was that a Divisional Executive decision to contribute a large sum of money to a particular political cause could not be reviewed effectively if the contribution was made and there was a subsequent review by the Divisional Conference which reversed the decision. 34 There are a number of authorities which support the proposition that in an appropriate case there can be implied in the rules of a registered organisation, a limitation on an express power contained in the Divisional Rules. In the present case it is appropriate to assume that the opportunity or right in the Divisional Rules to have the Divisional Conference review a decision of the Divisional Executive was intended to be effective. 35 This issue was analysed by Gray J in Scott v Jess (supra) at 284 in the following terms: "The difficulty of implying terms into the rules of an organisation does not, however, mean that such rules are to be construed as if no implication whatever arises from them. In many respects, there are to be derived from the express terms of the rules, the terms of the Act and the Regulations, and the nature, function and purpose of the organisation concerned, implications which limit what might otherwise be the extent of the express terms of the rules. The most obvious example is that powers given by the rules of organisations to inflict penalties on members are construed as being subject to the implication that such powers will not be exercised without adherence to the principles of natural justice. The implication of the requirements of natural justice is so well established that it is unnecessary to cite authority. Porter v. Dugmore, supra, was itself a case in which both Northrop J. and the Full Court held that there existed an implied limitation on the powers of the governing body of an organisation, preventing the institution of a system requiring members of the organisation to possess 'OK' cards distributed by the organisation in order that those members could obtain employment. … In such cases, it is not possible to point to any specific provision of the rules the performance or observance of which is being ordered or directed. In a real sense, the court is ordering or directing the performance and observance of the rules of the organisation concerned as a whole, the impugned act being regarded as a departure from the overall scheme of such rules. At all events, the jurisdiction of the court in such cases seems to be so well established that it is too late to attempt to overturn it." (See also Porter v Dugmore (supra); Adlam v Noack (1998) 90 IR 31 at 36.) 36 The first respondents submitted that to find such an implied limitation would make the activities of the Divisional Executive and its administration of the Division virtually unworkable, as whenever there was a Divisional Executive decision, which was subject to review, matters, the subject of the decision, would not proceed until the review was carried out. This is no doubt a factor to be taken into account in determining whether it is appropriate to imply the limitation for which the applicants contend, but for present purposes it does not lead me to the conclusion that there is no serious question to be tried that there is that implied limitation, particularly having regard to the existence of the right to have a decision of the Divisional Executive reviewed by the Divisional Conference. 37 The first respondents also drew attention to the fact that under the Divisional Rules there was no provision for the immediate calling of a Divisional Conference to consider a review of a Divisional Executive decision. Divisional Rule 8(xv) provides for the calling of a special Divisional Conference on receipt of resolutions from the majority of Divisional Branches or on receipt of a petition signed by not less than 10% of the financial members of the Division. However Divisional Rule 8(xvi) provides that the Divisional Secretary may call a Special Divisional Conference where a matter is referred to the Divisional Conference by the Divisional Executive. Otherwise, any matter to be brought before the Divisional Conference must await its biennial meeting. Thus it is open to the Divisional Executive to refer the review of a Divisional Executive decision to a Special Divisional Conference which the Divisional Secretary can call as soon as he wishes. Although the Divisional Executive is not obliged to refer such a review to a Special Divisional Conference, it is within its power to do so. It is therefore not appropriate that the Divisional Executive rely upon the lack of any provision requiring the calling of a Divisional Conference to review a decision of the Divisional Executive as a reason for not finding the implied limitation for which the applicants contend. 38 Notwithstanding the force of the submissions by the first respondents, I am persuaded that there is a serious question to be tried that there is an implied limitation on the power of the Divisional Executive to act upon a decision where a review by the Divisional Conference of that decision has been called for. If there is no such limitation in the Divisional Rules, one can conceive of many situations where the right of review given by Divisional Rule 9.15 would be rendered nugatory and ineffective. The Divisional Rules contemplate that the ultimate control, management and administration of the Division is vested in the Divisional Conference, and that is a factor to take into account in determining whether there is a serious question to be tried in respect of an implied limitation on the power of the Divisional Executive for which the applicants contend. 39 The first respondents submitted that in order to invoke the jurisdiction granted under s 209 of the Act, it was necessary to identify a rule which was not being performed or observed. They submitted, in substance, that in the present circumstances there was no rule which a person was under an obligation to perform or observe, but which was not being performed or observed. The first respondents relied upon the reasoning of Toohey J in Allen v Sideris (1984) 3 FCR 548, particularly at 561‑563 in which his Honour accepted (at 563) that "The Federal Court is not entrusted with a general supervisory role in relation to the affairs of organisations", and said that the real question for determination in an application under s 141 of the Conciliation and Arbitration Act 1904 (Cth) (the predecessor of s 209) was whether a person was under any obligation to perform or observe the rules of an organisation. The "matter" arising for determination before the Court is the observance or performance of rules: see also Darroch v Tanner (1987) 16 FCR 368 at 373‑375. 40 If the applicants make out their case at trial that there is an implied limitation on the power of the Divisional Executive to act upon a decision where a review by the Divisional Conference of that decision has been called for, then the order they would be seeking from the Court would be an order directing the Divisional Executive to recognise and observe that limitation by not proceeding to implement the decision and carry it into effect until the review by the Divisional Conference has been undertaken. The principles discussed in Allen v Sideris (supra) and Darroch v Tanner (supra) would not be departed from as the Court would be giving directions for the observance of the Divisional Rules which, upon their proper construction, contain the implied limitation for which the applicants contend. 41 The first respondents submitted that although the applicants were seeking interlocutory orders, those orders were in effect final orders because they hold up the carrying out of otherwise valid resolutions. At the present time, I am only considering the grant of interlocutory relief until the trial of the proceeding, so that any restraining orders made will only run until the hearing and determination of the proceeding. If the applicants fail in obtaining the final relief they seek, it will still be open to the first respondents to act upon the amended Divisional Rules once certified. 42 It is apparent that unless a restraint is imposed upon the certification of the rule amendments before the final determination of this matter, the rule amendments will be certified and will come into effect. The first respondents moved very quickly after the resolution was passed on 22 March to have the rule amendments certified, and the Industrial Registrar has indicated that unless restrained by order of the Court, she will proceed with the certification of the rule amendments. 43 The applicants submitted that the balance of convenience was in favour of the grant of interlocutory orders restraining the certification of the rule amendments, on the basis that if the rule amendments were certified pursuant to s 205(1) of the Act, it may not be possible to have the rule amendments set aside. The applicants acknowledged that there was authority for the proposition that it was open to an applicant to attack the validity of a rule on a ground which went to its original adoption, notwithstanding that the rule had been registered: Krantz v Maynes (1967) 10 FLR 134; Roots v Mutton (1978) 32 FLR 15 at 21. The applicants sought to distinguish Krantz v Maynes on the basis that that decision turned on the construction of legislative provisions relating to certification of rule amendments, which were essentially different and more limited as to the evidentiary significance of the registration of the rules. Under the legislation which applied at the time of Krantz v Maynes (s 139 of the Conciliation and Arbitration Act 1904 (Cth)), the Registrar certified that alterations to rules complied with, and were not contrary to, the provisions of the Statute, the regulations or an award and were not contrary to law. Under s 205(1)(c) of the Act, in addition to certifying as to these matters, the Registrar is also required to certify that the alterations have "been made under the rules of the organisation". I have reservations as to whether Krantz v Maynes can be distinguished as submitted by the applicants. In particular the reasoning in Re Food Preservers' Union of Australia (1988) 79 ALR 138 proceeds on the basis that the validity of an alteration to rules can be called into question after the Industrial Registrar has certified that, inter alia, the alteration "has been made in accordance with the relevant procedures laid down by the rules of the organization": see s 139(4) of the Conciliation and Arbitration Act 1904 (Cth). 44 It is not necessary to resolve this issue at this interlocutory stage, as I am of the view that the balance of convenience is in favour of the grant of interlocutory relief so as to maintain a state of affairs relating to the calling of elections for office bearers of the Divisional Executive of the Division which cannot be the subject of criticism. If I were not to grant the interlocutory relief sought and the rule amendments were certified, it would be open to the Divisional Executive to resolve to bring forward the Divisional Conference and call elections earlier than is otherwise provided for in the present certified rules. If such elections were held before the final determination of this proceeding, issues might arise in relation to the elections if the applicants succeeded in their claims, although s 209(6) of the Act would preclude an order being made under s 209 if the effect of that order was to treat those elections, or any step in relation to those elections, as invalid. I consider it an undesirable result that a possible outcome of the proceeding may be pre‑empted if interlocutory relief is not granted. I also take into account the fact that the rule amendments do not enable any officer elected to take up office before 15 October 2001. 45 The first respondents submitted that the Divisional Executive had acted to end "the paralysis of its normal functioning". However, there was no substantive evidence that there was any such paralysis other than its assertion. Mr Sutton said that the internal dispute over the Division elections was having an "incredibly destabilising effect on the ordinary work and operations of the Division". I was not provided with any particulars of this destabilising in effect other than that the matter was diverting Mr Sutton and one of the Division's assistant secretaries from performing their duties. Again, I was not provided with any details of any particular respect in which these normal duties could not be performed. Mr Sutton may be right when he said that the issue had brought about acrimony and splits in branches of the Division where there was previously a unity of purpose, but it is important that any controversial issues as to whether the rules of the Division, and the rules of the Union, are being observed, be resolved by the Court in circumstances where the possibility of the future conduct of the Division may be vitiated. 46 Having regard to my conclusion that there is a serious question to be tried in respect of the existence of an implied limitation on the implementation of a decision of the Divisional Executive subject to review by the Divisional Conference, it is not necessary to address the issue whether, in the absence of such an implied limitation, the Divisional Rules would be oppressive, unreasonable or unjust and thereby in contravention of s 196 of the Act. 47 The first respondents repeated the submission they had made when the matter was previously before me that the Court has no jurisdiction to grant an injunction against the Industrial Registrar as the Industrial Registrar is an officer of the Commonwealth holding office pursuant to the Act: s 39B(2) of the Judiciary Act 1903 (Cth), and the jurisdiction to grant such an injunction is exclusively committed to the High Court of Australia: s 75(v) of the Commonwealth Constitution. It was submitted that the provisions of s 23 of the Federal Court of Australia Act 1976 (Cth) had no operation, having regard to the terms of s 209 of the Act. I do not accept this submission. I consider that although s 209(4) of the Act provides a broad basis for granting interim or interlocutory relief, it does not exclude the operation of s 23. I do not consider that the Act provides "an exhaustive code of the available remedies": Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 29. I have reconsidered the issue whether I have power to restrain the Industrial Registrar from certifying the rule amendments, and I have again reached the conclusion, for the reasons set out in my earlier reasons for judgment, that I have that power. Although the Industrial Registrar has a duty to consider and certify amendments to rules once they are lodged and is not under an obligation to perform and observe rules, I am satisfied that the power to make interim orders set out in s 209(4) of the Act extends to restraining the Industrial Registrar from certifying the rule amendments: R v Joske; Ex parte Shop Distributive and Allied Employees' Association (1976) 135 CLR 194 at 212‑213, per Mason and Murphy JJ. 48 I turn to the issue of the referendum. The applicants' complaint is that Mr Sutton is not taking immediate steps to arrange for the conduct of the referendum, and that the referendum should be held before the next elections are called for office bearers of the Divisional Executive. Mr Sutton and the first respondents are refraining from implementing the procedure for calling the referendum. But they appear to be doing so because they contend that the four Divisional Branches who requested the referendum did not constitute a majority of the members of the Construction and General Division, and that the petition for the referendum which was delivered did not contain the signatures of 10% of the members of the Construction and General Division as required by Divisional Rule 10(i). 49 For the purposes of the present application, the applicants are relying on that part of Divisional Rule 10 which requires the Divisional Executive to hold a referendum if it is requested by "Divisional branches whose membership constitutes a majority of the members of the Division". The request for the referendum was made by four Divisional Branches whose membership constituted a majority of the financial members of the Division, but it appears that the membership of those Branches did not constitute a majority of the members, that is all the members, of the Division. Divisional Rule 10(i) is set out in par 20 above. The applicants submitted that the expression in Divisional Rule 10(i) "whose membership constitutes a majority of members of the Division" could not be read literally, but must mean "majority of the financial members of the Division". The applicants submitted that this was so because Divisional Rule 6.2 provides that any member who is unfinancial shall not be eligible: "to receive any benefits, participate in any deliberations, propose or second any new applicant member for admission, or exercise any authority or any membership rights." There is a proviso in Divisional Rule 6.2 that the Divisional Branch rules may provide that unfinancial members may vote in a ballot, but there is no evidence that any Divisional Branch rules make any such provision. 50 The difficulty with the applicants' construction of Divisional Rule 10(i) is that it provides that a petition may be signed by not less than 10% of "the financial members of the Division". Thus one finds the two expressions "members" and "financial members" in juxtaposition in the same rule. Further, the rule goes on to provide that the Divisional Executive shall take a referendum of "the whole of the members of the Division upon the matter or matters submitted …" (emphasis added). It is not to be a referendum of only the financial members of the Division, according to the terms of the Divisional Rules. The applicants submitted that this is a highly unlikely result, and an unintended result, having regard to Divisional Rule 6.2 which disentitles financial members from exercising any membership rights. 51 I have substantial reservations about the construction of Divisional Rule 10(i) contended for by the applicants. Although the result contemplated by Divisional Rule 10(i) might be said to be inconsistent with Divisional Rule 6.2, there is room for the argument that a referendum is a very unusual and exceptional event, and that in such circumstances unfinancial members should be given the opportunity to participate in the referendum. The proviso in Divisional Rule 6.2 that Divisional Branch rules may provide that unfinancial members may vote in a ballot, although they are not otherwise entitled to receive any benefits or exercise any other membership rights, also demonstrates that the Divisional Rules recognise the possibility of unfinancial members being given the right to vote. There is also Divisional Rule 7(2) which enables a Divisional Branch Management Committee in its discretion to waive fees and financial contributions. The Committee's discretion is unfettered, but a number of grounds for waiver are set out such as unemployment, inability to work through illness, hardship and disadvantage. 52 It is also relevant in this context to note that s 195(1)(b)(iv) of the Act provides that the rules of an organisation shall provide for: "The control of committees of the organisation and its branches respectively by the members of the organisation and branches." The control of the committees is therefore committed to "members" rather than "financial members". It is against this background that Divisional Rule 10(i) must be considered. 53 The applicants submitted that union rules are not to be construed with the same strictness as technical legal documents, relying on Bogar v Campbell (1995) 59 IR 243 at 246. But that is not to say that the plain, unambiguous meaning of the rules can be ignored. In Bogar v Campbell, as well as accepting the submission that the construction of rules of an organisation cannot be approached in the same way as one would approach the interpretation of a contractual document or an award, Keely J accepted the submission at 246, that: "… an unambiguous document in the sense that has been referred to in the decisions - must be interpreted as it stands and that an ambiguity is not demonstrated simply by pointing to the difficulty of construction." 54 I consider that there is a serious question to be tried on this issue, albeit one that is not very strong. It is a matter which will have to be developed fully at trial. I reach this conclusion in particular, having regard to the provisions of Divisional Rule 6.2 and the fact that there is an apparent incongruity between those provisions and the plain meaning of the provisions in Divisional Rule 10. 55 Notwithstanding the fact that the Divisional Executive is seeking to bring forward the elections for the Divisional Executive (although that activity will be frozen until the determination of the rule to show cause), I do not consider that the balance of convenience is in favour of the grant of interlocutory relief restraining the holding of any elections until the referendum is held or until the proceeding has been determined. Whilst the injunction which I propose to grant in relation to the certification of the rule amendments is in place, the elections cannot be brought forward. If the determination of the proper construction of Divisional Rule 10(i) results in the interpretation for which the applicants contend, then any further injunctive relief can be considered at the time judgment is given in the proceeding. If the proper construction of Divisional Rule 10(i) turns out to be the interpretation for which the first respondents contend, then no referendum will be required to be held as a result of the request for the referendum delivered by the four Divisional Branches. 56 I therefore propose to continue the injunctive relief granted on 23 March 2001 until the hearing and determination of the proceeding or further order. If the first respondents do not offer an appropriate undertaking in relation to the implementation of the resolution passed on 21 March 2001, I propose to order that until the hearing and determination of the proceeding, the first respondents treat as of no effect the resolution of the Divisional Executive passed on 21 March 2001 bringing forward the elections for the officers of the Division to be held on or before 8 May 2001. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Kingham v Sutton

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Judgment (18 paragraphs)

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Legislation Cited (4)

Cases Cited (20)

Cited By (3)