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

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,

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

2. 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.

3. 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

1. 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.

2. 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.

3. 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.

5. 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.

6. 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.

7. 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.

8. 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.

2. 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.

(c) Further letter from Mr. Nicholson dated 8 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.

2. 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

3. 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.

4. 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.

5. 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).

7. 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 :

2. 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:

4. 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.

5. 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.

12. 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

merkeoe of Tagquiry was cttabldished. Ae I pointed ont, the

July resolution referred to "serious allegations" and established a Committee of Inguiry to "determine" whether certain improprieties had occurred. In my opinion this was quite

a different situation from the appointment of two inspectors

to investigate a company's affairs in the case dealt with

by the Court of Appeal in Norwest Holst Ltd v. Secretary of

State for Trade and Others (1978) Ch. 201. In my view the Committee of Inquiry was obliged to observe the principles of natural justice in so doing.

Mr Winneke submitted in the altemative that the principles of natural justice had been applied by the Gomnittec of Inquiry. He introduced this submission by contending that the Committee of Inquiry could not have been under any duty to comply with the principles of natural justice at the time when it commenccd its inquiry becausc at that stage "it did not even know what it was embarking on and it had to invite submissions to find out where it was going".

Iam unable to accept that subnission. The menbors uf the Committee of Inquiry "new that three of Lhe four terms aL reference of the Coanitlec of Inquiry requered it to deternminc whether there had beca "any fimpropricty" on the part of certain members of the Associakten., That task necesear lly Livelved detcormining thet th. facts vere in relations to the waitters lis dispute ard then deleatiping Vinther, of the fuck) so Aebertind, the conduct coul? be preveriv devcrabed ae cen tituitrs: an

Jwpropwecty. F thi tate cue Cties uh onc. ein ef the

"impropriety" was one of the matters which the Committee

word of Inquiry expressly dealt with in the final report in passages already quoted.

Mr Winncke supported his submission that the principles of natural justice had in fact been complied with by pointing out that before embarking upon the inquiry it had sought and obtained representations from the persons whom it thought could assist it. Further, when it had examined the material and made certain draft findings it advised the persons affected by those findings so as to enable them to present further material designed to cause the Comnittee of Inquiry to reconsider its draft findings.

• findings of the Comnittee of Inquiry were findings reached ane formulated by laymen and should not be examined as crilically as if they werc those reached by a Court of law. In his submission it mattered little whethec the draft findings were called provisional conclusions, or a prima facie case or a charge - the signifacant matter was that those drafl findinz- were put to the persons affectcd by them and a reply was invited.

Despite Mr Vuirike's advocacy and after making allovar ¢

for the fact that the draft findirgs wesce those of laymen, I an

unable to reach the carlusion that they amounted to no more

than giving the claimant notice of charges so as to enable her

to put his defence. On studying the draft findings and the accompanying documents I have come to the conclusion that they could not be reasonably construed as charges in respect of which the claimant was being afforded an adequate opportunity to defend himself.

The findings and accompanying documents are set out in full earlier in these reasons for judgment and at this stage I do no more than give references to some passages in those documents which in my view make it clear that the draft {findirgs were much more than charges. The letter enclosing the draft findings expressly stated that the Committee "following a consideration of all the evidence, has drafted findings and reasons for the findings". It referred to "the evidence before the Committee on which the adverse findings or criticism was made". An anncxure listed some 59 documents of which 6 related specifically to the claimant as being "documents on which the Committee has based its findings". The draft. findings themselves were headed "findings of the Committce'. They included such passaves as:

(C2.\ The complaint by Me Nicholson ... is a valid compleint and substantiated by the evidence".

In its "coar-uts tn relation to" those Findings the Con idttee

said, intcr alia, "The Cowarltee doce nol accept fhe suygestier

The "Findings of the Committee" in accordance with paragraph 5(d) of the July resolution began with the words "The Committee has determined that ...", The matters so "detexmmined" were that the claimant's "handling of Mr Nicholson's complaint was improper", that he had "improperly limited the Brief" to the solicitors, that he had also "acted improperly" in the manner detailed in D6, D7, D8 and (together with the other members of the Branch Commiltee) D12. The "comments in relation

to" those findings included statements that the claimant "clearly

indicated to the Branch solicitors that ...". Its concluding paragraph stated that "It is the Committee's view that the overall treatment ... lacked the desired degree of propriety and impartiality due to any member ...".

In my opinion it is clear that by 9 October 1978 the Committee of Inquiry had considered all the evidcnee and made draft findings and forrulated reasons for its findings although its letter stated that jt would reconsider its draft findings in the light of any furthcr evidence before reaching its final conclusions. In so acting, I consider that the Comnittee of Inquiry failed to observe the principles of naturel justicc.

In deciding that. the purported cetahlislment of the Comittee of Tnquiry vas imvalid I have already referred in

They contain epectfic provisions tmtendd to give Lo a merbe

or officer a acegquate opportumiry to defo bua vit ow

allegations have bec rade and bis conduct ts the subyect of

If, contrary to the vicw which I have expressed, the Committee of Inquiry had been validly established then in my view it should have conducted its inquiry in a manner consonant with those detailed provisions in the rules. I consider that it failed to ensure that the claimant had adequate notice of the "serious allegations" referred to in paragraph 3 of the July resolution and a proper opportunity to defend himself.

Having reached the conclusions that the Committee of Inquiry was invalidly established and that in any event it failed to observe the principles of natural justice in conducting its investigation, it is not necessary to discuss in any detail the November meeting of the Federal Executive in Brisbane which purported to receive the final report of the Comnittee of Inquiry. In my view that decision was also invalid even if the matter was properly before the Federal] Executive by reason of item 42 of the agenda.

Tt jis convenient to deal next with the argument thet s.141 docs not empower the Court Lo grant the relict sought.

I accept Mz Winncke's subnissions that s.14l does uvt confer upon the Coure the pow r to male declarctery orders and that the Gourt is only empovercd to make «en order givang directions

an obligatien to perfor or ebeeesc the rules of the ovgeamreat ror

Mr Winneke submitted that s.J41 is designed to enable directions to be given for the performancc or observance of rules "so that some existing and continuing situation can be remedied and accordingly some practical result achieved through the operation of the rules which are directed to be observed". He submitted that in the present case there is "no current and existing vice ... flowing to Mr Magner by reason of the operation of any of the rules of this organisation which a direction to comply with those rules can cure". He submitted that the section does not authorise the directions sought becauce "the matters in respect of which Mr Magner complained are over and closed ... The time to ask for relief under s.141 was during the currency of those matters". In this connection Mr Finneke

made it clear that his argument as to jurisdiction would not

have prevented the claimant from secking relicf under s.141

shortly before the July meeting of the Federal Executive (in respect of the agenda) or shortly after the July meeting (in respect of the proposed investigation by the Cormittee of Inquiry) or even shortly after the draft fineings of October 1978 ~- hascd upon an alleged denial of natural justice or a contention Lhat the Committec had becn improperly appointed.

Hay ve. AW... (1944) 53 CLALR. JUS of 123-124 where O'lore J.

"Although the complainant has established a widespread disobedience and disregard of the rules it does not follow that he is entit]ed in this Court to the relicf he secks. ... The section does not confer general jurisdiction over internal disputes in organizations nor does it constitute this tribunal a Court of disputed returns with powers such as those conferred by the Commonwealth Elcctoral Act. It confers a Limited jurisdiction exercisable only against a person who is under an obligation to perform or observe the rules of an organization. The obligation must be onc existing at the time the Court makes its order and one which the person is permitted to discharge in the future. This

raises the question of whether the section enables a matter

which is passed and closed to be re-opened so as to require the redoing of something which is required to be done before a specified time and which it is alleged was

wrongly done While it may be conceded that the rules

of the organization require Returning Officers to allow and count valid votes only, can it be said that having completed their duties in the matter of examining anc counting votes they are any longer under an obligation to perform or observe rules when the time for performance is fixed and has passed? Their appointment was for a special purpose Lo be discharged in most cases, within a specified period and having performed their duties in relation to a particular election each may be, in the absence of something specific in the rules, functus officio."

In my view the judgment of O'Mara J. in that case was based upon

the fact that the matter was "passed and closed" and that

His Honeur's victs were espresecd before the High Courl decisey

"under the cules the counting of al] votes nust be completed ... not Tater Lhan MthJ:nuary. Hay commenced proceedings in Lhis Court on 2%h Jonory, 1944, and by

that time the resvondenut Returning Officer. had completed the performance of the daties amposed upon them Ly the rules ayn the matter of counting ond allowin, votcs.

obligetion to p.cform er observe vine require . them to

recone: ger any decision reeched jn the counting of the : 1 tt

votes snd to recoutl em? allot the vote: eccordingly.

Bariell ve. Opitz Lo which T shay! refer shortly. In cny event,

Mr O'Cillesban pointed out, O'Mara J. west on to say:

"Before leaving this aspect of the matter, however, I wish to make it clear that I am not to be taken as deciding that because the time fixed for the performance of a rule has passed the jurisdiction of the Court to make an order under section 58E is thereby excluded.

My decision is confined to a case where there has been

a bona fide performance within the time fixed by the rules and the performance is subsequently challenged as not being in accordance with the provisions of the rules."

Mr Winneke also sought to rely on Holmcs v. Riordan and

Martin (1955) 86 C.A.R. 180 where (at p. 198) Dunphy J. said:

"As the only matters which I found worthy of consideration in these proceedings are founded upon and relate to matters connected with the ballot which has been concluded for

some months, any order even if [I thougiit ome were justificc, would be a futility. The provisions of section 81 are clearly intended to obtain some practical result and an order made thereunder would have to apply to some present and existing vice, except perhaps in a case where the

Court considered that there was evidence indicating a possible and fairly proximate recurrence of the inatter complained about."

The passage quoted appears to be directed towards the Court's discretion rather than its jurisdiction. The case docs not appear to me to decide that the Court has no power to make the orcers sought in the present proceedings.

Mr Winneke conceded that if his argument as to jurisdiction

is correct then the order made in Tynch v. Waters (1967) 11 T.L.R.

116 by the Coamonmvealth Industrial Court Munapny, Jooke and Nery J was made without jurisdiction. The judgments im Chal case co nol refer to any such armenc as having becn pul. The sam.

end others ((1905) 20 Trduotris) informetior Bulletin 1) by the

Commoncealth Industrial Gourl (Sosncer C.3., Joske ane Suitie se JI. t s

"141 (1) A member of an organization may apply to the Court for an order under this section in respect of the organization.

(1A) A member of an organization who considers that a person who is under an obligation to perform or observe the rules of the organization has not perforined or observed those rules may make a complaint to the Bureau accordingly and, thereupon, the Bureau may investigate the matter.

(1D) Where, after an investigation under this section, the Bureau considers that a person who is under an obligation to perform or observe the rules of an organization has not performed or observed those rules with respect to a particular matter, the Bureau shali notify the organization accordingly and request the organization to ensure that the person complies with those rules with respect to that matter.

(1E) Where an organization refuses or fails to comply with a request made in a notification by the Bureau under sub-section (1D), the Bureau may apply to the Court for an order under this section with respect Lo the matter set out in the notification.

(1G) An order under this section may give directions, for the performance or observance of any of the rules of an organization by any persen who is under an obligation to perform or observe those rules.

(1H) The Court has jurisdiction to hear and detlerminc an application undcr sub-section (1) or (JE) but, before waling an order under this section, the Court shall give any per on against whom Lhe order is sought an opporLunily of being heard.

(4) A person shall net far) to comply with a darection er order of the Court uudev this ootdon.

(6) An order shall nol he rads usder thac sectdad thot

electro ta an office moon ore trivai saa as broach of

an orgeui vation (oher than an officially comiected

ballot) that was completed before the institution of the proceedings under this section unless those proceedings were instituted ...

(7) An order shall not be made under this section that would have the effect of treating as invalid an election in respect of which there has, whether before or after the commencement of this sub-section, been an inquiry under section 165 if, upon the inquiry ...

(10) In this section, 'election' includes a purported election that is a nullity."

It may be noted in passing that the section in its present form expressly contemplates (s.141(6) and (7)) that an order under the section may ",,. have the effect of treating as invalid an

The High Court considered the extent of the power conferre/ by the section in a somewhat different form (then s.58E) in Barrett v. Opitz (1945) 70 C.L.R. 141 and more recently in R. v.

Joske_ and others: FX parte Shop Distributive and Allied Employees Association and others (J]976) 10 A.L.R. 385.

"In wy opinion, 2t is implicit in these provisions that th- rulcs of the organizatior shall be performed endl vt by its members; the rules imporce a duty upon the ucubers the erganization to observe and obey then. And the enforce tn3 of that duly is ranitted to the Arbitration Court ... Another argument, which J] take substantially from the of appeal, is thet the opty order that the Court ecule mete was an order directiug th. pecformance or observa ¢ of a particular rule and not peneral declarations ered igus slice as wore mad. and issucd ty the Court. Put os. S8P showda net be consti d Lea strictly, copretadly am vicw af sel a

at provision ats, 249, 3 orders ane dirccetyocc setevant to rhe perfoimaine.s ane

oLscrvance of the cules," Dixon J. said (at p. 169): "En cousiCutia, bre fie ut of .. Sah, at suct be been. ta '

mond that Pow Veoof the act trests theo eciererce and the Combeut Qs che gud) s gl cu Ov ye LIOR Ge & Makeen oF SNeChe Pocanerra, Ac ute ars Fram the Ta a LO elec qt ed

p. 43, Isaacs J. found, in the provisions of Part V. and the schedule, enough to support an injunction, where the general law would not have given that remedy."

order went beyond the authority given by s. 58E, because they followed no specific rule and imposed obligations which, besides being either no more than consequential

on, and calculated to remedy past failures to observe,

the rules or ancillary to renewed observance of them, were tco vaguely expressed to form a foundation for the

further penal proceeding contemplated by sub-s. (2) of

In my opinion, s. 58E intends Lhat the court shali go beyond the precise form of the rules and shall] give directions calculated to ensure that they are carried out. In the circumstances of this case, the directions are well framed to bring about a compliance with the rules." .

"In my opinion, the order and directions which the Commonwealth Court of Conc2liation and Arbitralion gave are not in excess of the jurisdiction vested in the Court by s. 58E.

I think that it would narrow Lhe ordinary grawmatical meanins of the language of the section to construe it as conferring, jurisdiction Jimited to ordering a person to do a specific act directcd by any rule or to refrain from doing a specific act forbidden by any rute. The jurisdiction of the Court «© tends Lo giving directions for the purpose of having the rules of the organisation carricd out: and it is net recessary Chat these directioas should Literally pursue the terms of any of the rules."

Rarretr's Case cupover.e the Court to weke an order giviag the pore :

the respondurts ewe fesled te yorform ov oboerve the miles

of the Association and the directions sought are, in the words

of Dixon J. in Barrett's Case, "consequential on and calculated

to remedy past failures to observe the rules". In expressing that opinion I am only referring to the power of the Court.

The length of time that had clapsed between the failure to observe the rules and the commencement of the proceedings under s.141 would be relevant to the exercise of the Court's discretion. In exercising its discretion the Court would consider to what extent the matter was really "passed and closed" in the words

of O'Mara J. and whether the proposed order would be "a futility" (per Dunphy J. in Holmes v. Riordan (supra)).

In R. v. Joske (supra) Stephen J. (with whom Barwick C.J.

"By the first of these orders a respondent, Tacon, was required to take no further steps to conduct the clection for officials in the Newcastle and Northern branch of the union. 'The stcps 1m question were the counting of vates by Tacon and the declaration of the result of the poll. The prosccuters would deuy to the Industrial Court power to male the order it did, there being no rule of the union which would be breached by a counting of votes and the declaration of the result of the poll.

The Industria] Court made the order because it thought that a strong pomia Sacic case bed been made oul that the rule uncer which the entire cJeebien vas couh.otled was invalid. In thove circumstances 16 was, JF thevk, clearly within powcr to make the crdcry als terms werc, in the vords of Dixon Joan Row Comauaealth Sout of

JO OL8 Jeoloat 170, 'weld framed to ors. accul a corp) came vob the subes', in the sence that te forbid acke whee, Lio oure sealea. vould new he

positice aid peaecie wd) otiget to aupageed reds . . - it cleeely assicre in procuring Sub copl. duce.

"The judgments of this court in R_v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141, make 1t 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 eaplicitly 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 the

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 Lhe rules of an organization by

any person who is under an obligation to perform or

In my opinion the directions sought by the claimant are "framed to bring about a compliance with the rules in the sense that" they require the respondents to treat as nul] and void resolutions and othcr actions which were not authorised by the rules and were invalid. Mr O'Callaghan Q.C. in his written subniss.on referred to the possible use of the Final report Lo initiate action under Rule 35 and Pule 5). In wy opinion the final report could not be used to imitsate aerien but, if the respondents are able Lo continue to treat the final repore as having been validly mide and validly received by the Federal Exccitive, ther the clea et tay weld] be arive rscty affected if action svre snitieted under Rule 35 or Ruie 51. Similarly, he mis be adversely aff clog Ly election wateriol

issued under Rule T4°A and electicn coments urder Rule

148BOo) Cis) and, in particuiar, Rade T4°B(o). TL do not acecpl

Accordingly, I am unable to accede to Mr Winneke's submission as to jurisdiction. In my opinion the Court has

power to make the orders sought. However, the matters to which

Mr Winncke referred, that it is necessary that there be "an

existing and continuing situation" to be remedied, "a current

and existing vice" to be cured and a "practical result" to be

achieved are relevant to the exercise of the Court's discretion, which brings me to the remaining argument. .

Mr Winneke submitted that the Court in its discretion should decline to make the orders sought. It was common ground that the Court has a discretion under the section.

In my view the proper principle upon which to approach the exercise of the Court's discretion under s.141 is that expressed by Kelly J. in Wilson v. Ieydon (1944) 53 C.A.R. 482

"I regard section 58E, therefore, as a safcguard specially designed by the Legislature against actions by persons or groups of persons within an organization in disregard or breach of its rules, the observance or perforrance of which the members are entitled to cxpcect will be ensured. Action taken without authority, express or amplied in

the rules, to deny or to delay a member's right to sane benefit, privilesze or office to which tho rujes entitric him, if unchecked, may destroy his own and other mendes! confideuce in the administration of the organization and

so impiir its cffectaveress - at Icast jn their cyes - as

a bod; representative of their interests. Jroiry opinicr, Parla et intended tiat the perer ib repatcd tn vac Cowie should be exsreiscd to chech such action, a7 to pul an

end to unsithoctiecd mmoietioe, du el] cares vhinre the ection or inmctson, eo the caw me, be, amounts te a subdetante 7 Lr i

failure tu perfor or chart oe the rules af the re,rstered bedy. Provaded the Feri ore de of go sub-tm tial noture,

it is um other vards the duty of the Court Lo cvercioe the disertlie iy pores confers 2 dar tll etion ip order te

That principle was applied in Miller v. The Buildings Workers

Industrial Uvion of Australia and others (1947) 59 C.A.R. s36

at p. 843 and again in Woodward v. Scott and others (1947) 59 C.A.R 918 at p. 926,

The importance of the observance of rules was also referred to in Krantz v. Maynes and othcrs (1967) 10 F.L.R. 134, where Dunphy, Smithers and Kerr JJ. said (at p. 143-4):

"The provisions of the Conciliation and Arbitration Act 1904-1965 leave no room for doubt that the legislature attaches the greatest importance to industrial organizations having suitable rules and ta the observance of those rules. It has authorized this Court upon complaint by a member

of an organization to order the observence of rules by persons who are under an obligation to perform and observe them. It might well be thought that where a majority

of the members of the controlling body refuse to obey valid rulcs and propose to operate other rulcs there

would be a classic case calling for the cxercise of the

Mr Winneke sought to rely on the judgment of Dunphy and

Kerr JJ. in Mayel] v. Waters and others (1967) J1 F.L.R. 317 at p. 322-3 as shoving that relicf is granted under s.141 for the purpose of curing some existing vice that will extend into the future jf compliance with the rules is not enforced. It is true that the Gourt referred to the invalid resolutior these

under con.ideration as being one which "would prevent him trem

. . . tt standing For office for more than a further eisht years

However, that cencceduence of the ray clid veselatien wos the roasoo why the Comvtt et cr eid 265 Ciocrellon loushke a2 aide in favour of the clammat altlouys bo hed "velaycod Cor ut ve and a bolf du fore scchin, relict". Toowas not ve ected by

show that an invalid resolution operatcd to prevent him from standing for office. .

(1977) 18 A.L.R. 108 at p. 112 where the Australian Industrial Court (Dunphy A.C.J., Evatt and St. John JJ.) dealt with a resolution which had purported to susperd a member for a period, The Court's view on the question of discretion was succinct:

"Counsel for the respondents has urged that we exercise our discretion against the claimant becausc he admitt<cd

using foul] language to the delegate Mr Grenville on g February. We decline to do so. To leave a fFindin

of guilt to stand may affect the claimant's future both in relation to his work and his membership of the union."

Mr Winneke cited McKay v. Williens and others (1973)

22 F.L.R. 1 where the Commonwealth Industrial Court exercised its discretion against the claimant. Franki J. (with whom Spicer C.J. and Dunphy J. agreed) seid (al p. 14-15):

"As regards the claimant I consider that any denial of natura] justice which Look place was not, in all the circcmimtonecs, of such a uature as to warrant the Intervention of this Court. ... 7] have also given weipht to the claimant's con'uct at the inguicy. For all prectical purposes the clainavt vas allowed to make any subrisszions to the meetemy, Lhat b. wished, with the one exception that he was net pore tted Lo contig. Lo reac fiua a pastocudas decewanntr vrich be said set out hts whole defeuce, although as bL have apparcitly he ventled have Boe allowed tu distrimte to

all psesert a cop, of Lhiat Cocusent, or te pres t lis cas. Gn are other ry. hl a med. JL seman tare th Rhaviven Cebor, 7 ob fart our how hoo best go 2 or defcue, he pre. card to use the cece 26m Net bitamty te defer d bee Ga echigd bt to rece' Fram Lho Cacirait Ty had pucpared ve ch costae died rele cpa te t'1:

The Court appears to have taken into account (inter alia) in exercising its discretion the conduct of the claimant at the hearing before the domestic tribunal and the extent to which the claimant "was allowed to make any submissions to the meeting that he wished, with the one exception that he was not

permitted to continue to read from a particular document ...

which contained little relevant to the inquiry ...".

One natter relating to the Court's discretion can be dealt with shortly. The claimant was asked in cross-examinution whether he was really only the nominee of the Branch Executive Committee. His answers included the following:

"The decision to take action was by the branch execuLlive committee. They supported my position in the matter, and so the matter was brought forward in my name with the approval of the branch executive commitlee.

Really, what this article is saying is right; this is an action taken by the branch executive conmittee im your name?

It is taken in my name, it is Laken by me, but it has the support of the branch executive committee.

You arc really only the nomince for the branch cxecutiwe coumittce in these proceedings?

No, it is takep wm my nance by re dircetly." I do not regard that evidence as alferdiny ary eround for

In cseence fe Virmeke contends thal the Court shoule encrcise fits Gusev bien Gguan tt the clause on ty crowies, Fiuret, tho Cenaitteo of Taquery arace ovt of tha etain at's wn owrdisr cerbicl dares eh af ta wtchbulso.t con faint -

Branch Council's "condemnation of Nicholson's pattern of behaviour". Second, the claimant had been content to participate in the inquiry and the July resolution establishing it.

As to the first ground, although the conduct of a claimant is relevant to the exercise of the Court's discretion. on the facts of this case I am not prepared to refuse relief by reason of the claimant's alleged carlier conduct in respect of Mr Nicholson's complaint, i.e. at Branch level before the matter was first raised in the Federal Exccutive. I have reached that decision because:

(i) no proceedings have been launched under s.141 against the claimant in respect of that earlier conduct and accordingly that conduct has not been investigated in detail before the Courl;

(ii) even if Mr Winnehe's criticism of the claimant's caslier conduct be correct (as to which Ihe no finding cithe- way) I would not regard it as a sufficient ground for refusing to make an order in respect ef a purported Comnittec of Tuguiry which vas invalidly ect ilist..d, which acted in a ratwr nol comsoncuit vith the detaricd

prove- toms in tre rales cul wren fatblod lo eorerve Wie

As to the second ground, Mr Wanneke invited the Court Lo infer that the claimant was content to participate in the proceedings leading up to the appointment of the Conmittee of

Inquiry and its investigation. He relied upon the following:

(i) The claimant forwarded documents to Federal Executive on 14 July 1978 and they were not scnt under protest.

(ii) The claimant's objection to the establishment of a Committee of Inquiry was based only on the need for it to be on the agenda.

(iii) He participated to some cxtcnt in the selection of the menbers of the Committee of Inquiry.

(iv) He complied with the direction of the Federal Executive in the July resolution by forwarding further documents and they wcre not sent under protest.

In my view items (1) and (iv) are not significant - a layman

could not be expected to consider whether documents should b=

sent under protest. The claimaut's failure to express other objections (item (41)) 1s also not significant. On the evidence ilem (iii) cosstituted a uiinine! participation.

Mr Wiuncke al-o relied upos the Feet that the clarieie

could have invtiated Lhese proceedings ot an carlicr poine of

time and ti.' 1s a ftur redesunt to th dascrelicn (sce

As act. tior (19%) 035 CAR. SI caved Mace div. Von Csonr.

a refusal of rclief and I do not regard it as significantly supporting the contention that the claimant was "content to participate".

I regard as a much morc significant factor the claimant's action in forwarding to the Committee of Inquiry on 14 August 1978 a document which he invited the Commitiee to consider in order to determine whether it should take action against the author. In my view that constituted what Mr Winneke called "willingly participating" in the proceedings of the Committee of Inquiry. I have given careful consideration as to whether I should exercise my discretion against the claimant in this matter by reason of that factor, together with the other matters relied upon by Mr Winneke, viewed against the factual background of this case. Having regard to the importance which the legislation attaches to the performance and observance of the rulcs of regislered orgenisations and the views which 1 have already expressed that the Comnittee of Inquiry was invalidly cetablishiA and in any event acted in away that breached the prerczplee of natura] justice and was not censonant with the rules, Fo em not prepared to accede to Mr Varuche's stk tooten as lo discvetien.

Vho ordcr of the Gourt will he Ulbat each of the respond its

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