Magner, Alexander Michael v Fowler, G R & Ors [1979] FCA 30

Federal Court of Australia|1979-04-12|Before: Keely J

THE COURT ORDERS THAT: The respondents G. R. Fowler, A. Forward, S. E. G. Imer, B. Cotter, J. Hayes, A. A. M. Simakoff, P. O'Brien, K. C. Duffy, G. S. Griffith, G. W. McKenna, R. Nolan, W. J. S. West and D. CG. Hagan and each of them: (a) Perform and observe the Rules of the Administrative

Public Service and in particular Rules 13 and 29 by

Nicholson to the Federal Fxecutive of the Association

Perform and observe the said Rulesand in particular Rule 29 and Standing Order 21 by treating as null and void the resolution of Federal Executive at its meeting in Darwin from 18-20 July 1978 purporting

to establish a Committee of Inquiry which resolution is recorded and numbered item 56 in the Minutes of

Perform and observe the said Rules and in particular

the proceedings of the said Committee of Inquiry up

Perform and observe the said Rules and in particular Rule 29 and Standing Order 21 by treating as null and void the resolution of Federal] Executive of the Association at its meeting at Brisbane from 20-23 November 1978 that the report of the said Committee

IN THE MATTER of the Conciliation and Arbitration Act 1904

On 14 December 1978 under s.141 of the Conciliation and Arbitration Act 1904 (the Act) a rule was granted calling upon the respondents to show cause why the following orders should

"1. That cach of the Respondents perform and observe the Rules of the Administrative and Clerical Officers' Association, Commonwealth Public Service and in particular Rules 13 and 29 by treating as null and void the purported appeal by Nicholson to the Federal Executive of the Association under Rule 13 of the Association's Rules.

That each of the Respondents perform and observe the said Rules and in particular Rule 29 and Standing Order 21 by treating as null and void the resolution of Federal Executive at its meeting in Darwin from 18th - 20th July 1978 purporting to establish a Committee of Inquiry which resolution is recorded and numbered item 56 in the Minutes of the said meeting.

That each of the Respondents perfotin and observe the said Rules and in particular Rules 55 and 55A by treating as null and void all the proceedings of the said Committee of Inquiry up to and including the making of its report dated 17th November 1978,

That each of the Respondents perform and observe the said Rules and in particular Rule 29 and Standing Order 21 by treating as null and void the resolution of Federal Executive of the Association at its meeting at Brisbane from 20th-23rd November 1978 that the report of the said Committee of Inquiry be received.

Such further and other orders whether interim or final as the nature of the case may require."

The claimant is and has been at all material times a financial member of the Administrative and Clerical Officers' Association, Commonwealth Public Service (the 'Association), an organisation of employees registered under the Act. He is and has been since 1949 a member of the Victorian Branch of the Association, is and has been since 1968 the Secretary/Treasurer of that Branch and is one of the two Executive Councillors representing the Victorian Branch on the Federal Executive of the Association.

On 5 February 1979 by consent the rule was discharged as to the respondent Peck who had ceased to be Federal Secretary of the Association on 31 December 1978.

The remaining respondents are and at all material times have been members of the Association and under a duty to perform and observe the rules of the Association filed in the office of the Industrial Registrar (the rules). The respondents now hold

and at all material times have held the following offices in

The respondent Fowler Federal President The respondent Forward Vice Federal President The respondent Imer Assistant Federal Secretary

(and Acting Federal Secretary since approximately 8 November 1978)

The respondents Hays and Cotter Executive Councillors (N.S.W.)

Simakoff Executive Councillors (A.C.T.) The respondent McKenna Executive Councillor (Vic.) The respondent Duffy Executive Councillor (Qld) The respondent Hagan Executive Councillor (W.A.) The respondent Griffith Executive Councillor (Tas. ) The respondent West Executive Councillor (N.T.) The respondent Nolan Executive Councillor (S.A.)

Mr O'Callaghan Q.C. and Mr Lamprati appeared for the claimant. Mr Winneke Q.C. and Mr Peter Gray appeared for the respondents G. R. Fowler, A. Forward, S. E. G. Imer, B. Cotter, J. Hayes, A. A. Simakoff, K. C. D. Duffy, R. Nolan, W. J. S. West and D, C. Hagan (the ten respondents). Mr S. Collins of counsel informed the Court on behalf of the respondents P. O'Brien and G. S. Griffith that they consented to the making of the five orders set out above and on behalf of the respondent McKenna that he consented to the making of ordcrs 1-4 of those orders. The question of what order should be made in relation to those three respondents was left for determination after the conciusion of the hearing as to the orders sought against the ten respondents.

A convenient summary of some of the rules (accepted as adequate by the ten respondents - subject to setting out more fully Rules 18, 27 end 29) appears in the following paragraphs

"5. Rule 17 provides that Conference shall be constituted by the Federal Officers and delegates from Branches. Rule 15 provides that the Tederal Officers shall be the Federal President, the Vice Federal President, the Federal Secretary and the Assistant Federal Secretary. Rule 18 provides that Conference shall be the supreme body of the Association. Rule 27 provides that, subject to certain rules, the Federal Executive (which by Rule 28 shall consist of the Federal Officers and delegates from the Branches who shall be known as Executive Councillors) shall be the supreme governing body of the Association when Conference is not sitting. By Rule 28 (f) each Branch is entitled to one Executive Councillor on Federal Executive plus one additional Executive Councillor if the Branch financial membership is more than one fifth of the total Association financial membership at 3lst March preceding the triennial Branch elections.

Rule 28 provides for a Federal Executive Committee consisting of the Federal Officers and three Executive Committee members. Rule 28B provides that when Conference or the Federal Executive is not sitting, the Federal Executive Committee may exercise all the duties and powers of the Federal] Executive other than those contained in rules specified in the said Rule 28B.

Conference meets triennially (Rule 20), Federal Executive meets when determined by Federal President, provided that not more than four calendar months shall elapse between two sittings (Rule 29)."

The orders sought are directed to meetings of the Federal] Executive held in Darwin on 18-20 July 1978 (the Darwin meeting) and in Brisbane on 20-23 November 1978 (the Brisbane meeting) and associated matters. It is necessary to refer to certain earlier events.

On 29 April 1978 the claimant received a letter dated 27 April 1978 signed by one M. Nicholson, a member of the Victorian Branch of the Association. The letter, accompanied

by an attachment, set out details of an alleged breach of

confidentiality by one P. Connelly, an Industrial Officer

employed by the Victorian Branch, and suggesting his dismissal. The letter and attachment were in the following terms:

Recently I was contacted by an officer of your Branch to act as the Union nominee to sit on an interview panel to assess applicants, both from within Telecom and outside, for two positions in Telecom's Victorian Information Systems Branch.

The subsequent interviews were held on 18/4/78 and as a result of these interviews it is intended to appoint two applicants from other Australian Public Service Departments; this result was a unanimous decision of the panel.

Acting in my role as union nominee this information was conveyed by telephone to your Mr P. Connelly. Subscquent to the advice being given to your Branch events occurred which lead me to believe that a serious breach of confidentiality occurred. This breach of confidentiality had serious repercussions both towards me personally and within the State Information Systems Branch.

Attached for your information are the details surrounding this case,

My personal credibility both within the Victorian Information Systems Branch and the Victorian State Administration in general was seriously impugned.

The matters discussed between a Union nominee and a Union full-time employce, in my opinion, are strictly confidential and should be in no way communicated to parties directly involved for the positions in question. Such matters must be handled through the management of Telecom so that all parties have equal opportunity, that 1s a personal relationship between a union officer and an applicant does not give anyone the right to breach confidentiality.

The result of this breach of confidentialily placed not only the management of the Victorian Information Systems Branch but also myself in a position surrounded by suspicion, innuendo and loss of credibility.

I believe that I have no option now but to advise Telecom management that serious consideration now nceds to be given to the involvement of Telecom Personnel acting as Union nominees, as there now seem to be doubts that any respect towards the involvement will be given.

In view of the serious nature of this matter and the comments I have made above, it is expected that an unreserved apology to both myself and the management of the Victorian ISB is the only appropriate course of action. Such an apology should be forthcoming immediately.

Additionally it is considered that such a blatant abuse of an officials position of office calls for the dismissal of that person. This blatant abuse of an official union position cannot and should not be tolerated.

If this matter is not speedily resolved then it will be necessary for me to place the facts of this situation

Copy to ACOA Federal Secretary Copy to ACOA Federal Vice President

On about the 10/4/78 Mr P. Connelly of the ACOA officially contacted me concerning the matter of being the ACOA's nominee on an interviewing committce for

two positions in the Victorian Telecom ISB (positions 8 and 9). He informed me that a previous sct of interviews had been carried out by the Victorian Telecom ISB and were not satisfactory from the Union viewpoint and that complaints had been lodged by two Union members concerning "bad' interviewing. He mentioned that as Union nominee

I was there to make sure justice was done for all and that the inside officers of the Victorian Telecom ISB were not disadvantaged.

I then contacted Mr N. Draper, Victorian Manager, Personnel and industrial Relations as requested by

Mr P. Connelly, and discussed the sensitive political' issues of the interviews.

The interviews were held on 18/4/78 and a unanimous decision was made with all fairness to all officers who applied for the positions.

Mr P. Connelly and discussed the criteria used by the interview committee for selection, the methods used for grading and the eventual outcome of the intervicws, stating that all that was now required was the ratification of the recommendations by the Victorian Personnel] and Industrial Relations Department. I also discussed with him an additional position (No 10) and a proposed method of filling that position. We also discussed the matter of the two officers who had previously complained to the Union; I intimated that Mr N. Laidlay was rated highly and depending on the methods and criteria used for the filling of the third Duty Programmer (Class 6) position he may be nominated to the position. I then indicatcd that justice had been carried out and that the other officer, Mr N. Turner, was rated very low on our list.

Mr N. Turner was working night shift on Thursday (11.30pm to 7.30am), Mr J. Laughton, the Manager, Victorian Telecom ISB, was also working late that night and he was confronted by Mr Turner and was told in detail everything I had discussed with Mr P. Connelly during the afternoon.

The inside applicants on Friday were upset when it became known that possible outside applicants would be appointed to the positions. It became known that a 'Union Rep' had discussed with Mr N. Turner all aspects of the interviews.

On Friday 21/4/78 Mr N. Draper contacted me concerning problems that had arisen since the interviews and indicatcd that counselling of unsuccessful inside applicants may have to be rescheduled to an earlier Lime.

On Monday 24/4/78 the committce counselled the inside applicants; it was at this meeting that Mr N. Turner stated that Mr P. Connelly was a personal friend of his and that they had discussed the results together."

On 2 May 1978 the claimant wrote to Mr Nicholson a letter which, omitting formal parts, simply said:

"T have received your letter to me dated 27th April, 1978 and shal] consider the matters you have raised.

On 8 May 1978 Mr Nicholson wrote to the claimant the following letter (formal parts omitted):

place the facts before Telecom Hq. Section Committee

unless I receive a substantive reply by then." The claimant on 20 June 1978 wrote a letter seeking advice from solicitors, Maurice Blackburn & Co. Further letters passed between the claimant and the solicitors.

On 10 July 1978 the claimant made a 16 page report to the Victorian Branch Commiltee which endorsed the report and made certain recommendations to the Branch Council. On 12 July 1978 at a meeting of the Victorian Branch Council the claimant's report as Branch Secretary was distributed to the Councillors and to Mr Nicholson who was present as a proxy for a Councillor. The meeting was suspended for twenty minutes to enable the claimant's report and the Branch Committce's recommendations to be studied by Councillors. The Branch Council carried a resolution adopting recommendations by the Branch Committee

"1, The complaint against a Branch Industrial Officer be dismissed.

Mr. Nicholson be called upon to apologise to the Industrial Officer concerned in making his unfounded criticisms and in Laking steps to make them public.

Other aclions occurred at Branch level which need not

be set out in these reasons for judgment. At Federal] Executive

level, the respondent Imer, as Assistant Federal Secretary, notified members of the Federal Executive by circular dated 23 June 1978 that the July Federal Executive meeting would be

held in Darwin on 18-20 July 1978 and that the agenda would

close on 3 July 1978. The agenda paper included the following

as item 31 under the heading "Section B ~ Financial,

"31. Rule 13 - Appeal by Mr. M.J. Nicholson, Branch Councillor, Telecom HQ, Victoria against

tas : ; : . 2 3 is 7 oad rR ~ a decision of the Victorian Branch Council refusing

to suspend Standing Orders to consider a personal grievance concerning the Victorian Branch Office."

The claimant wrote to each Federal Officer and Executive

Councillor enclosing copies of documents relating to the matter,

which letters were hand delivered to each member of the Federal

Executive at Darwin before the meeting started on 18 July 1978,

The minutes of the Darwin meeting of the Federal Executive in

"56 RULE 13 - APPEAL BY MR. M. J. NICHOLSON, VICTORIA (A 3}

(MOVED) Pcck That the Federal Executive notes a letter from the Victorian Branch Secretary/Treasurcr dated 6 July 1973, with an attachment dated 5 July 1978, which is said to be a Rule 13 appeal by Michael Nicholson. Federal Executive also notes a letter dated ]2 July to the Federal President by Mr. Michael] Nicholson requesting the Fedcral Executive to investigate the detail of a complaint lodged by

Mr. Nicholson with the Victorian Branch Secretary/Treasurer concerning matters relating to the running of Lhe Branch. The letter also requests that the Federal I.xecutive investigate the cvents that took place within the Victorian Branch in relation to the original complaint.

Federal Executive also notes a letter with attachments dated 14 July 1978, addressed to Federal Officers and Executive Councillors which was distributed by the Viclorian Branch Secretary/Treasurer to the addressees at the Federal Execulive mecting on Tuesday 18 July 1978.

The Victorian Branch placed by this document the followzng material before the Federal Executive :!-

(a) Original complaint by Mr. M. Nicholson dated 27 April 1978.

(b) Victoria's Branch Secretary's acknowledgement dated 2 May 1978.

(d) Extract of Telecom (HQ) Section Committee Meeting minutes for 10 May 1978.

(e) Telecom (HQ) Section Committee Bulletin (May 1978). (£) Letter to Federal President from Cr. Belzer including Notice of Motion lodged by Councillor for 14 June

(g) Federal President's letter to Cr. Belzer dated 13 June 1978.

(h) Victorian Branch Committee Minutes 10 July 1978.

(i) Victorian Branch Secretary's report to Branch Committee 10 July 1978.

The documents also referred to other evidence by witnesses taken during the enquiry as well as legal opinions obtained by the Branch.

The Federal Executive finds that the appeal under Rule 13 does not comply with the provisions of Rule 13(b) in that

the matter was not referred to the Federal Executive

The Federal Executive, having regard to material placed before it by the Victorian Branch Council and Mr. Nicholson, and having regard also to the number and gravity of

serious allegations contained thcrein, resulting in findings, which have now been placed before the Federal Executive by the Victorian Branch Council, considers that as the Supreme governing body of the Association, when Conference is not sitting, with powcr (and a duty) to superintend, manage and control the Association affairs, directs that an investigation be conducted by the Federal Executive CommiLtce.

It further directs that the Victorian Branch President and Secretary/Treasurer, Mr. Nicholson and the Teleco Headquarters Section Committee make available to the FEC within a period of 14 days from the date of this resolution, the following :-

(a) All the evidence and statements in relation to this matter from whatever source.

(b) All requests for ]lcgal opinions on such matters as are encompassed by the questions raised together with such opinions as have been supplied as a result of the requests.

(c) Such other material as may be in the possession of any person which the FEC may specify, which may assist the FEC in its inquiries.

The terms of reference for the FEC in the conduct of the enquiry shall be as follows :-

(a) To determine whether the conduct of Mr. Nicholson, both in his allegations against the Victorian Branch, its officers and/or employees and in the performance of his duties as an Association nominee on a Promotions Appeai Board and his subsequent conduct, involved any impropriety on his part.

(b) To determine whether there has been any impropriety on the part of the Telecom Headquarters Section Committee in its conduct in these matters.

(c) To determine whether there is any substance to the complaints made by Mr. Nicholson concerning the conduct of the Victorian Branch, its officers and/or its employees.

(d) To determine whether there has been any impropriety or undue delay on the part of the Victorian Branch, its officers and/or its employees.

(a) Afford the opportunity to all persons to make representations or present evidence in writing of any relevance to the enquiry.

(b) Consider any request from any person making representations or presenting evidence that such representations or evidence be withheld from publication and only be made available to members of the Federal] Executive.

(c) Have power to recommend to the Federal Executive whether as a result of its inquiry instructions should be 1ssued to the appropriate officer Lo lay a charge against a member or members, of the Victorian Branch in accordance with Rule 55(e).

The Federal] Executive directs thal no further action of any nature whatsoever be taken by the Victorian Branch, its officers or staff or the Victorian Branch Council] in connection with the matter under investigation other than that which is neccessary Lo properly prepure any representations and/or cvidence to be presented to the Committee.

Mr. Magner sought a ruling from the Chairman as to wheLher

the matter is properly on the Agenda. The Federal President as Chairman ruled that it was properly on the

Mr. Magner moved dissent from the Chairman's ruling, with the necessary support. The Vice President took the Chair. The Chairman's ruling was upheld and the Federal President resumed the Chair.

AMENDMENT MOVED (Duffy) That the motion be amended to provide that the investigation be conductcd by a Committee of four members of the Federal Executive,

FURTHER AMENDMENT MOVED (O'Brien) That the investigation required by the motion be conducted by a Committec of four life members.

The Federal Secretary sought a ruling as to whether the Federal Executive could validly delegate such authority to a Sub-conmittee. The Federal President ruled that the Federal Executive could so delegate its authority in this matter.

AMENDMENT (Duffy) CARRIED - FURTHER AMENDMENT (O'Brien) LOST - AMENDED MOTION CARRIED

A. A. M. Simakoff. (Ms. Forward and Messrs Fowler and

Peck disqualified themselves from consideration. )"

It will be seen that the committee appointed by the Federal Executive in July 1978 is described both as a committce and as a sub-committee in the resolutions which cstablished it and decided its composition. It described itse]f both in its findings of 9 October 1978 and in its report to the Federal Executive dated 17 November 1978 (the final report) as "the Committee". The affidavits of the claimant and of the respondent

Imer both rcferred to it as the Committee of Inquiry, a

The respondent Imer on 25 July 1978 wrote to the claiinant drawing his attention to the directions of the Federal Executive as to the supply of documents and the invitation to make

representations to the Committee of Inquiry. By letter dated

25 July 1978 to the Federal Secretary the claimant forwarded copies of documents relevant to the investigation. The Committee of Inquiry on 9 October 1978 wrote to the claimant a letter which, omitting formal parts, was in the following terms and accompanied by the following documents which were headed "Findings of the Committce" but were referred to in the letter as "draft findings" and which I shall call draft findings:

The Committee set up in accordance with resolution number 56 of the 85th meeting of the Federal Executive has met and following a consideration of all the evidence, has drafted findings and reasons for the findings. Having reached that point, the Committee has determined that it will adopt the following practice :-

(a) Torward a copy of the draft findings to all persons against whom any adverse finding or criticism was made.

(b) Forward a copy to such person or body of the evidence before the Comnittee on which the adverse findings or crilicisin vas made.

(c) Allow a period of 14 days for such persons or bodies to provide further evidence vhich in their view may lead the Coimittee to reconsider its draft findings.

(d) Having reconsidered any further evidence presented, the Committee shal] reach its final conclusions.

Attached for your information are copies of the following documents :-

(i) A complete list of all docurents presented to the Committee as evidcnee. (ii) Those findings relating to yourself. (iii) The reasons for the Coiuaittee's Findings. (iv) A last, and where appropriate, copies of the evidence upon which the findings were based.

I have been asked by the Committee to advise that al} documents accompanying this lelter are to be treated as confidential in view of the fact that the findings are

only in draft. Any unauthorised publication of any material contained herein shall be treated as a breach of Rule 55 of the Association's Rules and proceedings instituted accordingly.

The Committee's ruling concerning publication does not, of course, apply so far as you are required to make available to members of the Victorian Branch Council and the Victorian Branch Committee, material for their consideration.

In accordance with the Committee's determination any further evidence you wish to place before the Committee should be received on or before Friday 28 October, 1978.

In accordance with paragraph 5 (c) of the Federal Executive resolution number 56 of the 85th mceting, th Committee has resolved that :

The complaint by Mr. Nicholson that the bare acknowledgement of receipt of his letter of complaint by the Victorian Branch Secretary was inadequate, is a valid complaint and substantiatcd by the evidence.

The refusal of the Victorian Branch Council at its meeting on 14 June 1978, to suspend Standing Orders to discuss Mr. Nicholson's complaint was in accordance with Association Rules.

The referral of the matter and relevant documents to the Branch Solicitors did not justify the confidentiality claimed by the Victorian Branch President and Sccretary.

There is not sufficient evidence to determine the truth or otherwise of the assertion that the Victcrian Branch minutes gave a 'distorted' account of the matter.

The Committee dcsires to make the following comments in relation to the findings published in para. C of the attached document.

As to para. (2), the Committee acknowledges the serious nature of the complaints made by Mr. Nicholcon in his

letter to the Victorian Branch Sceretary dated 27 April 1976 and considers that the Sccretary's response of 2 May 1978

Mr. Nicholson rcceived no further formal reply or advice as to the action taken or contemplated by the Victorian Branch Secretary in response to his complaint led the Committee to this finding.

As to para. (4), the Committee desires to point out that whilst the ruling of the Victorian Branch Council was correct, it is the Committee's view that such ruling unnecessarily exacerbated the dispute.

As to para. (5), the Committce considers that the actions of both Mr. Nicholson and the Victorian Branch Secretary had long since destroyed whatever concept of confidentiality remained at the time the matter was referred to the Victorian Branch Solicitors. The Committee does not accept the suggestion that the referral of the matter to the Branch Solicitors in itself conferred any degree of confidentiality on the matter and is firmly of the view that Mr. Nicholson was entitled to and should have been given advice of the actions taken by the Branch Committee dealing with his complaint. This is particularly so at the point when legal advice was sought by the Branch.

In accordance with paragraph 5(d) of the Federal Executive resolution No. 56 of the 85th Meeting, the Committee has determined that:

Mr. Magner's handling of Mr. Nicholson's complaint was improper in thal during the period between Mr. Nicholson's initial letter and the July Victorian Branch Comnittee Meeting, there were times when his inactivity in the malter caused undue delay and further exacerbated the dispute.

While the Victorian Branch Committce resolved on the 12 June, 'that the Branch Solicitors be' asked to examine the papers in relation to a conplaint lodged by a member alleging breach of confidentialiLy by an Industrial Officer, and advise the Branch Committce on courses of action open to it', Mr. Magner did not relay this general bricf to the Sulicitors, bet improperly limited the brief by the following statement: 'As Branch Secretary, I am concerned to advise Connelly of what rights he has to have redressed any wrong done to him'.

6, The Branch Secretary, Mr. Magner acted improperly by nol giving notice to Mr. Nicholson of his report, to both the July Branch Committee and July Branch Council which contained findings adverse to Mr. Nicholson Lhereby not allowing Mr. Nicholson to respond to the proposed findings before the Committee and Council accepted the report.

The Branch Secretary acted improperly in his selective presentation of facts and/or documents to the following:

(a) The Branch Solicitors, and subsequent Solicitors (b) The Federal Executive

Mr. Magner acted improperly by sending to Mr. Turner (au applicant before the Selection Board) Mr. Nicholson's complete 'confidential' letter, then accusing others of breaching confidentiality.

9, Mr. Magner's public aspersions as to the trustworthincss of the Federal Executive at the July Victorian Branch Mecting were improper and unbecoming of a Federal Executive member.

The Branch Committee acted improperly at its July meeting by:

(a) Permitting Mr. Connelly in the absence of Mr. Nicholson to remain present while Mr. Nicholson's complaint was being discussed.

(b) Denying both Mr. Nicholson and the Telecom HeadquarLers Section Committee natural justice in not ensuring that they were notified of ihe recommendations proposed to be made against them, and given an opportunity to respond to such recommendations.

The Committee desircs to make the following comments in relation to the findings published in para. D of the attached document.

As to para. (4), the Committee lakes the view that having regard to the seriousness of Mr. Nicholson's confidenti-.] letter of complaint, the Victorian Branch Sceretary,

Mr. Magner, acted unwiscly in net providing a more subslantia] reply to Mr. Nicholson cither in his acknow]ider that the CoTmittes was established not merely to detcrinune the facts but also to determine whether on those facts there had been any imprupricly

on the part of various persons inciudim; the claimant.

Accordingly, in my opinion the July resoiution of the Federal Executive purporting to establish the Committee of Inquiry was invalid as it was not authorised by any rule of the Association and the establishment of a Committee with such terms of reference was contrary to the general intention of the rules.

Mr O'Callaghan Q.C. on behalf of the claimant submitted that, even if the rules gave the Fedcral Executive the power to carry a resolution establishing a Committee of Inquiry. the Federal Executive had no power to carry the resolution because it was not on the agenda for the July meeting of the Federal Executive. His submission that it was necessary that it be on the agenda was based upon Rule 29 coupled with Standing Orders 21 and 22 which are "part of the Rulcs of the Association" by reason of the express words of Rule 152.

(a) The Federal Exceutive shall meet when determined by the Federal President or in his absence the Icderal Secretary.

(b) The Federal Secretary shall give reasonable noLice of all meetings Lo Federal Officers, I.xecutive Councillors and Branch Secretaries.

(c) Not more then four calendar months shall elapse between any two mectines ef the Vederal Ivecutive, provided that a meeling of Gonference shall he regarded as Lukin, the place of a meeting of the Federal Executive in determining thie maxdiruin peried between any two Federal Feecutive ticetings.

(d) The Federal Officers, Dxecutive Councillors or their proxies, and Branch Councils may submit proposals for consideration by orditary weeb ays

of the Federal Executive. All such proposals shall be forwarded to the Federal Secretary at least two weeks prior to the meeting.

(e) The Federal Secretary shal] forward to each Executive Councillor and Branch Secretary a copy of the Agenda for ordinary mectings at least one week prior to the meeting."

Mr O'Callaghan QC contnded that Rule 29(d) which required that 'hll proposals" of Federal Officers, Executive Councillors or their proxies, and Branch Councils "shall be forwarded to the Federal Secretary at least two weeks prior to the meeting" so as to enable the Federal Secretary to prepare and forward copies of the agenda (Rule 29(c)). He further submitted that Rule 29(c) when coupled with Standing Order 21 had the effect that the Federal Executive could not pass a resolution in respect of a matter which did not appear on Lhe agenda ~ except by the method

Rule 152 appears in the rules under the heading "Part VIT1l - Rules of Debate and Standing Orders" and reads as follows:

The Rules of Debate are set out in the appended Stendinz Orders. They are part of the Rules of the Association and shal! be observed at all weelings held under the Rules unless the Rules otherwise provide.

Subject to the provasions ef Rule 62 and provided that two-thirds of those prevent and entitled tu vote are in favour, it shell bo covpetert at eny wecting other than a Special General Mectine for ordinary busine >s to be transacted efter the special purpose Fer waren the mecting is calied shall have been corpleted.

Any or all of the Standing Orders, with the excepLion

if two-thirds of those present and entitled to vote

introduced has been dealt with, the ordinary course

It will be noted that Standing Order 21 empowers a meeting to deal with "ordinary business" after "the special purpose" for which the meeting is called has been completed - provided that two-thirds of those present and entitled to vote are in favour.

Mr Winneke Q.C. submitted that it was not necessary that the agenda for the Federal Executive meeting in Darwin in July 1978 include the matters dealt with by the Federal Exccutive in the resolutions cstablishing the Committee of Inquiry. He submitted that the words "the special purpose" in Standin, Ordcr 21 made it clear that the Order only applied to a specially convencd meeting. I ain unable to accept that submission partly because of the wording of Rule 152 which states that the Standin,, Orders "shall be observed at all meetings held under the Rules unless the Rules otherwise provide". Further, Standing Order 21 itceelf expressly applics to "any meeLing other than a Special Getera} Meeting".

I appreciate the force of the arzument advanced by Mr Winmeke that the words "the special purpose" mean that Standing Order 21 135 only referring to teetings cullee for a

special purpose. However, having regard Lo che words in Rute 152

and the words which I have just quoted from Standing Order 21,

I have come to the conclusion that the words "the special

purpose for which the meeting is called" mean, as Mr O'Callaghan Q.( has submitted, the matters on the agenda for the mecting in question. In so construing the Standing Order I treat the words "special purposc" as meaning "particular purpose". In my opinion the Standing Order is intended to confer a power to dea] with ordinary business in certain circumstances after dealing with

the matters on the agenda which constitute the particular purpose for which the meeting is called. In this connection the Shorter Oxford English Dictionary defines "special" as including the following:

distinct or individual character; also, in weakencd

sense, particular, ccrtain ME. b. Addilional to the

As to Rule 29 Mr Winnekc Q.C. contcnded that the provisions of Rule 29(d) and (e) arc facultative. In support of this argument he contended that it would be absurd if a bocy such as the Federal Executive were unable to deal with urgent matters which had ariscn after the ageuds had been sent out by the Federal Secretary under Rule 29(e). LI accept the aryuient by Mr O'Callaghen Q.C. that no such absurdity is created beceure an urgent matter - or for that, any other matter not on the

agenda - can be dealt with by the Federal kAxcculive providid

that the cendition? specified an steading Order 21 are ob yeod.

Further, Me Winn ke's attcaupted relreiuce on part praviiee us lo

agendas cannot succes (7 coy Te yaon (1951) 73 C.A.K. 3).

It may well be that the Federal Executive could discuss a matter not on the agenda but in my opinion it cannot carry a resolution in respect of a matter which was not on the agenda unless advantage is taken of the provisions of Standing Orders 21 or 22. I have formed that opinion as a matter of construction of Rule 29(d) and (e) which, taken togcther, specifically require that all proposals by Federal Officers, Executive Councillors or their proxies, and Branch Councils "shall be forwarded to the Federal Secretary at least two wecks prior to the meeting" and (e) "The Federal Secretary shall forward to each Executive Councillor and Branch Secretary a copy of the Agenda for ordinary meetings at least one weck prior to the meeting". In my view the intention of the rule is to ensure that Executive Councillors and Branch Secrctarics shall have notice of Lhe matters to be considered at the mcecLing of the Federal Executive - a body which consists "of the Federal Officers and delegates from Branchcs who shall be known as Executive Counci)lors" (Rule 26(a)).

The item on the agenda under which the Federal Lyecutive purportcd to act in passing the July resolution was iteu 3] - the text of which has already been set out. That Ltcm on its face related to an attcinptcd appeal by Mr Nicholson agasn.t « decision of the Branch Council to suspend Standing Orde re and un my view was not sufficient to suppert the July resolution.

The evidence does not sug,. vb that a vole wa. Lalen under Standing Order 21 at vhich "two-thirds of Lhose presuut and

entitled to vole" voted ga fuvow of the July ce-olui tea beri

dealt with as "ordinary business to be transacted after the" items on the agenda. Nor does the evidence suggest that such a vote was taken under Standing Order 22 at which "two-thirds of

It is arguable that neither Standing Order 21 nor Standing Order 22 requires a vote in order to determine whether the necessar, "two-thirds of those present" are in favour of the proposed action. However, having regard to the use of the words "entitled to vote" appearing immediately after the reference to "two-thirds of those present" 1 consider Lhat the better view is that a vote is required in order to determine wheLher the necessary two-thirds are in favour. Accordingly, even if, contrary to the view which I have expressed carlier, the Federal Executive had power to pass the July resolution, in my opinion it was not validly carricd because the subject matter to which it related was not sufficiently specified on the agenda,

Mr Winneke Q.C. submitted that the Coumittce of Inquiry was not obliged toa observe the principles of natural justice. He contended that the Comaittce of Inquiry had no puvec to bear

charges or to inflict penalites or punish™cents and fell within

the cotcpory of an acdwiriserablive inguiry beceus, Lt wan in 'ssemine Part of the proesess of sood adminioatratson., T am unable oO accept that suwiais acon, bruadly for the reasons alroady given

i rejecting his suliagerten as Lo the purpose for vhuich the

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (390 paragraphs)

Cases Cited (1)

Cited By (1)