Purden Pty Ltd v Registrar in Bankruptcy for the Bankruptcy District of the Sate of New South Wales & Australian Capital Territory [1982] FCA 132

"presentation" of a creditor's petition under the Act and "filing of a creditor's petition under the Bankruptcy Rules.

Bankruptcy Act 1966 {Cth.) ss. 44 (1), 47 (2) Bankruptcy Rules r. 12

BETWEEN; PURDEN PTY. LIMITED Appellant AND: THE REGISTRAR IN BANKRUPTCY FOR THE BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH

BETWEEN: PURDEN PTY. LIMITED Appellant AND: THE REGISTRAR IN BANKRUPTCY

FOR THE BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY

Respondent ORDERS JUDGES MAKING ORDERS: BOWEN C.J., FISHER & LOCKHART JJ. WHERE MADE: SYDNEY DATE OF ORDERS: 15 JULY 1982 THE COURT ORDERS THAT:

1. The appeal be allowed.
2. The Registrar in Bankruptcy for the Bankruptcy District

of the State of New South Wales and the Australian Capital Territory pay the costs of Purden Pty. Limited of this appeal and of the

BETWEEN: PURDEN PTY. LIMITED Appellant AND: THE REGISTRAR IN BANKRUPTCY

FOR THE BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY

CORAM: BOWEN C.J., FISHER & LOCKHART JJ. 15 JULY 1982

THE COURT: This appeal raises a narrow but important question in bankruptcy namely, the meaning of the word "presented" in the

Bankruptcy Act 1966 ("the Act") in the context of a creditor

presenting a petition for a sequestration order against the estate

Curiously enough, the question is comparatively free of authority, nctwithstanding the presence of the same words,

although not always in the same context, in the previous

Commonwealth Bankruptcy Act - the Bankruptcy Act 1924 and in

earlier bankruptcy legislation of the States of Australia and of

selected the presentation of the petition as the event which

determines many rights, duties and liabilities of bankrupts and

ereditors under bankruptcy law and from which important

consequences flow. For example, before a debtor becomes bankrupt, the Court may appoint a trustee to take control of his property (s. 50), stay legal proceedings against his person or property (s. 60), or order his arrest in certain circumstances and the seizure of his property (s. 78) - in each case after the presentation of

After a debtor becomes bankrupt the date of presentation of the petition on which he was made bankrupt is critical for various purposes including the determination of the period of relation back ({s. 115), the ascertainment of his property

divisible amongst his creditors (s. 116), the avoidance of

preferences (ss. 122 and 123), and the repayment by creditors to the trustee of his estate of moneys received as a result of

execution by those creditors against his property (s. 118).

The appeal arises this way. On Tuesday 9 February 1982 a law stationer, representing the petitioning creditor, Purden Pty. Limited ("the appellant"), attended at the New South Wales Bankruptcy Registry in Sydney and lodged there a petition by the appellant as petitioning creditor, petitioning this Court for a sequest ation order against the estate of Alan Darnay White; a cheque for $60.00 being the fee prescribed under the rules for the

presentation of a petition; and affidavits in support of the

petition. At the same time the law stationer completed a document described in the evidence as a "Debit Note" relating to the lodgment of the cheque. The law stationer was then told by the Registry officer to whom she handed the documents that it was not possible for the petition to be sealed and issued that day and that she should return on Thursday 11 February 1982 to collect it. The evidence does not show whether the cheque for $60.00 remained

at the Registry or was taken away by the law stationer.

On 10 February 1982, a Deputy Registrar in Bankruptcy signed and sealed the petition and, on the note attached to it,

Cn 11 February 1982 a clerk from the office of the solicitors for the appellant went to the Registry to collect the petition. He was informed by a Deputy Registrar in Bankruptcy that the petition could not be handed out as "it was out of time" 1.e., the period of six months within which the petition should have been presented expired on 10 February 1982 because the act of bankruptcy on which the petition was founded was committed on 10

August 1981. The Deputy Registrar relied on s. 44 (1) (c) of the

"44 (1) A creditor's petition shall not be presented against a debtor unless -

petition is founded was committed within 6 months before the presentation of the

petition be handed out. The Acting Registrar in Bankruptcy for

the Bankruptcy District of New South Wales and the Australian

Capital Territory then purported to refer a question of law to the Court under Rule 119 of the Bankruptcy Rules. Rule 119 provides that if a question of law arises which the Registrar or a party to an application made to him under the Bankruptcy Rules wishes to have determined by the Court, the Registrar shall state the facts in the form of a special case for the opinion of the Court and

refer the special case for hearing and determination by the Court.

Although the form of Reference to the Court signed by the Acting Registrar set out facts 1t did not state the question of law which had arisen. This caused no difficulty in the present

case because it was common ground before the learned primary

Judge and before this Full Court on appeal that the question of law was whether the petition was "presented" within the meaning of

the Act on 9, 10 or 11 February 1982. However, it would be as

well if any future References to the Court under Rule 119 stated specifically the question of law referred as well as the

The primary Judge held that a creditor's petition cannot

be presented unless and until it us filed in the appropriate Registry; that filing 1s part of the presentation of a petition;

that a petition is not filed until it has been lodged for filing

in the Registry and all necessary steps required by the Bankruptcy Rules have been taken within the Registry to issue the petition culminating in the payment of the prescribed fee of $60.00. As these matters had not been attended to on or before 10 February 1982, his Honour held that the petition had not been presented

within the time required by s. 44 (1) (c) and that the Registrar

had acted correctly. His Honour made no order as to costs. The

appellant appealed to this Full Court from his Honour's judgment.

The Act does not define "present", "presented" or "presentation". The dictionaries provide some guide to the meaning of the words. The Oxford English Dictionary defines

formally or ceremoniously; handing over, delivery; bestow, gift, offering."

and as an illustration makes specific reference to the

Jowitt's Dictionary of English Law 2nd. ed. defines

"to tender or offer. Thus, to present a bill of exchange for acceptance or payment is to exhibit to the drawee or acceptor (or his

authorised agent) with an express or implied demand for acceptance for payment."

There are reported cases where the meaning of the words

"presented" or "presentation" is adverted to; but they must be

viewed with some care because of the different statutes, rules and

"Presentation" of a commercial document has been held to mean delivering up or handing over the document, not merely showing it: Bartlett v. Holmes (1853) 13 C.B. 630; 138 E.R. 1347

In Alston v. Alston [1946] P. 203, Willmer J. held that

the date on which a petition is "presented" within the meaning of P

s. 2 of the Matrimonial Causes Act 1937 (U-.K.) is the date on

Even where the words have been considered in bankruptcy legislation there are differences, sometimes material

differences, between that legislation and the Bankruptcy Act 1966;

and the practices operative in different Registries have varied,

Cave J. said of a bankruptcy petition in Re Cripps, Ross

"Now prima facie a petition is presented when it is received and put on the file".

To the same effect see Halsbury's Laws of England 4th Ed. Vol. 3

In our opinion the words "presented" or "presentation" are used in the Act, not in the sense of the unilateral act of the creditor of showing the petition to the appropriate Court officer; but in the sense of handing or delivering the petition to and acceptance by that officer. The showing of the document to the Court's officer and its receipt by him are both necessary elements in the notion of presentation of a petition. However, what the officer does with the document thereafter is nothing to the point

Not only is this so according to the ordinary use of the words in the context of the Act; but the far-reaching consequences in bankruptcy law of the presentation of a petition, to which we have already adverted, demonstrate the necessity for

the act and date of presentation to be certain and readily ascertainable. Merely to show the petition to the Registry clerk without its being received would necessarily introduce an unacceptable element of uncertainty surrounding the date of presentation. Our view 1s supported by s. 47 (2) of the Act which

"Except with the leave of the Court, a creditor's petition shall not be withdrawn after presentation."

here would be no point in this provision if receipt by the

Registry was not an integral part of the presentation of a

There is a distinction of long-standing between the presentation and the filing of a petition. The act of presentation has been said to be the act of a party and the act of

filing to be the act of the Court: see for example Re Daunt

[1905] S.R.(N.S.W.)533 per Walker J. at pp. 536 and 537.

Counsel for the respondent argued that a petition is not

"Filed" is not a word to be found in the Act in relation

to a petition, whether a creditor's or a debtor's petition. The Act uses the word "presented". "Filed" 1s a word which appears in the Bankruptcy Rules, and understandably so. Those rules are

concerned with what happens within the Bankruptcy Registries and

with the duties of parties lodging documents there. "Filing" is the word traditionally used to describe the act or process of

Placing documents in the records of Courts or Registries.

Where the presentation and filing of a petition are synchronous or where the two acts take place on the same day, no

In the past the two acts often merged into one: the

creditor handed the petition over the Registry counter together with the requisite fee, and the officer of the Registry who

received it then stamped it as filed. This practice was described

by Walker J. in Re Daunt (supra) in relation to New South Wales in

",..the invariable course, and is so universally recognised that in practice a

presentation of a petition involves and implies a request that it be immediately filed. The old distinction has become purely

verbal. It is not unreasonable to suppose that the Legislature, when speaking of 'presentation', spoke of it as every

practitioner would regard it, as carrying with 1t the usual incident of filing."

It is common ground that the current practice in the New South Wales Bankruptcy Registry is that the creditor or his representative hands the petition and accompanying documents to the counter clerk of the Registry who places them in the "In-tray" of the Registrar or a Deputy Registrar in Bankruptcy. Later, whether the same day or a later day (sometimes several days elapse if the pressure of business is considerable), they are checked by a Deputy Registrar in Bankruptcy who completes the note attached to the petition (Rule 13 and Form 6). The documents are then placed in a container for collection by the creditor; and when

collected, the prescribed fee 1s tendered to the cashier who

places a stamp on the petition recording that it was filed that day and the appropriate fees paid. Such is however not

necessarily the practice in other District Registries, some of

which may indorse the petition as filed when it, accompanied by

the appropriate fee, is accepted into the Registry.

It is important to have in mind that the the Act and the

Bankruptcy Rules apply not only in one State or Territory of

Australia but throughout the nation. The rights and liabilities of creditors and debtors which flow from the presentation of a petition cannot be affected by practices in Bankruptcy Registries which may, and do, vary from place to place and time to time. This indicates to us the importance of a construction being placed on the word "presented" which 1s uniform throughout Australia and

not susceptible of State or Territorial variations or dependent

Subordinate legislation, including Regulations and Rules, cannot control the construction of an Act; but they may be

considered to determine "whether they fit into the construction

which I think the Act properly bears": Hales v. Bolton Leathers

Lamited [1951] A.C. 531 per Lord Normand at p. 544.

There is a conflict of judicial opinion whether recourse may be had to delegated legislation which has been made under the authority of an Act to assist in the construction of the Act if it is ambiguous: see for example Ex parte Weir [1871] L.R. 6 Ch.

App. 875; Stephens v. Cuckfield R.D.c. [1960] 2 Q.B. 373 at p.

381. We need not enter this area of controversy as, in our opinion, there is no ambiguity surrounding the meaning of the

Nor do we regard the Bankruptcy Rules as being inconsistent with the construction of the words which, in our

The Bankruptcy Rules provide that a "...creditor may present a petition seeking the making of a sequestration order against the estate of a debtor by filing the petition with a Registrar in Bankruptcy" (Rule 12 (1) ); that the "...petition shall be in accordance with Form 5 and shall have attached to it, or written on it, a note, for signature and stamping by the Registrar, in accordance with Form 6" (Rule 12 (2) ). The note contains provision for inserting the date fixed for the hearing of the petition by the Court and informing the debtor of the steps he must take if he intends-to deny or dispuie any statements in the

petition or to oppose the rpeti.ioa on cry uv unt ground.

The petitioning crediicr «4s wey: ted, at the time when the petition is filed, to do varrvyus tut.qs snecluding furnishing the Registrar with copies of the petition, filing various affidavits, and a copy of the trustee's consent to act as the

trustee of the estate of the debtor, if applicable (Rule 12 (3) }.

Rule 13 (1) requires the Registrar, where a petition is

filed, to fix a date, time and place for the hearing of the

petition; to cause particulars of those matters to be inserted in the note attached to each copy of the petition that is furnished

to the Registrar; to sign and stamp the note and return each of

A document shall not be filed,issued or otherwise dealt

with unless the prescribed fee has been paid (Rule 180). The fee payable for the presentation of the petition is currently $60.00

By merely providing that 1f a creditor wishes to present a petition he may do so by filing it with a Registrar in Bankruptcy, Rule 12 (1) is not saying that a petition which is handed to the counter clerk at the relevant Registry and received

by him has not been presented, if it is not accompanied by the

note in accordance with Form 6, the documents referred to in Rule 12 (3) or the filing fee. The act of presentation of a petition is under the Act, not the Bankruptcy Rules, and it affects rights and liabilities of the petitioning creditor, other creditors and the debtor. The act of filing the petition under the Rules, whether by presentation or otherwise, is an act of a different character; 1t as internal to the Registry. This is not to say that the Registrar may not be entitled to refuse to file the petition if the requirements of the Bankruptcy Rules are not complied with; for example, by failure tc tender the prescribed

fee or to file the documents referred to in Rule 12 (2) and (3).

It is vital however that the date of presentation of the petition be ascertained with certainty. Hence that date ought to

We conclude that the petition in the present case was

presented on 9 February 1982 which is within the time required by

I certify that this and the twelve (12) preceding pages are a true copy of the Reasons for Judgment herein of the Court.

Industrial law - organisations - dismissal from office - expulsion from membership - power of federal executive to

hear charges of gross misbehaviour against members of

branch executive - detailed consideration of provisions of rules of organisation - whether an amendment of rules con- ferring on federal council power to amend rules a valid exercise of power - whether such an amendment imposed upon

the membership conditions and/or restrictions which, having regard to the objects of the Act, were unreasonable - whether there was such imbalance in the representation of the membership on the organisation's federal council as to

warrant the conclusion that the structure of the organisation was "undemocratic" ~ whether charges laid against officials in their capacity as such were able to be relied upon for the purpose of expelling them as members - whether relief should be refused on discretionary grounds - whether officials by their conduct had repudiated their contract of membership ~ whether any such repudiation had been accepted by the organisation - whether the officials should, by reason of their conduct, be taken to have "unilaterally resigned" their offices and member- ship - Conciliation and Arbitration Act 1904, ss.132, 140, 141, 144, 171B, 171C, 171F and 171G.

ROBERT ARTHUR COOK & ors. v. G. CRAWFORD & ors. No. 6 of 1981

Between: ROBERT ARTHUR COOK, ULICK COLIN BIGNELL, HAROLD SHOOTER, KENNETH LEWIS TYLER, ROYCE LAWRENCE CUMMINS and GREGORY LAWRENCE WATERS

G. CRAWFORD, G.L. SMITH, R. FAIRWEATHER, R. HEVEY, T. BOURKE, R. MASTERSON and THE PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA

Judges Making Order: Smithers, Keely & Sheppard JJ.

Date of Order: 7 July 1982, Where Made: Sydney. . ORDER

the appesesesd, be stood over for further consideration

to a date to be fixed by the Court of its own motion or

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fb ca cacrsEd MEE Ya NEDI Bets att ont Pela A etn Ee ete LF

ROBERT ARTHUR COOK, ULICK COLIN BIGNELL, HAROLD SHOOTER, KENNETH L&WIS TYLER, ROYCE LAWRENCE CUMMINS and GREGORY LAWRENCE WATERS

And: G. CRAWFORD, G.L. SMITH, R. FAIRWEATHER, R. HEVEY, T. BOURKE, R._ MASTERSON and THE PLUMBERS AND GASFITTERS EMPLOYEES'

Smithers J.: In these proceedings commenced by rule nisi on 31 May 1979 the appellant Robert Arther Cook sought orders

pursuant to s.14l1 of the Conciliation & Arbitration Act 1904

{the Act) that the respondents perform and observe the rules of the Plumbers & Gasfitters Employees' Union of Australia (the organization), an organization of employees registered

(a) by treating as null and void certain resolutions of the Federal Executive of the organization adopted on 2 May 1979 purporting to expel from membership of the organization five persons being members and officers of the Sydney Branch of the organization (the Branch) and to dismiss them from the offices they held in the

{b) by recognising such persons as the holders of the

The five persons referred to were Ulich Colin Bignell, Harold Shooter, Kenneth Lewis Tyler, Royce Lawrence Cummins and Gregory Lawrence Waters. On 2 May 1979 the said Bignell was the elected Secretary of the Branch, an elected Branch delegate to Federal Council and an elected member of the Federal Executive of the organization, the said Shooter was the elected Assistant Secretary/organizer of the Branch, the said Tyler was an elected Branch delegate to Federal Council and an elected full time Branch organizer and the said Cummins

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On 10 August 1979 Messrs Bignell and Shooter were added as applicants in the proceedings No. 19 of 1979 and on 3 September 1979 Messrs Tyler and Waters were also added as applicants. The proceedings were heard and determined by his Honour Mr. Justice Evatt who gave judgment on 4 March 1981 that the rule nisi be discharged. From this judgment the five applicants have appealed to this Court. They are hereafter

The resolutions of the Federal Executive were passed inthe course of the imposition of penalties purportedly under r.35(10) of the organization on the determination of charges brought before the Federal Executive of the organization by Ronald Ivor Masterson Secretary of the Newcastle Branch of the

"Being an officer of the Sydney Branch he is guilty of gross misbehaviour in that he erdered and directed H. Shooter, R. Cummins, K. Tyler and G. Waters being officers of the Branch under his direction and control to actively persuade, encourage and aid members of the Newcastle Branch of our Union to resign from membership of our Union and he has approved and endorsed their actions in doing so.

The Grounds upon which I lay these charges against U.C. Bignell are that between 23rd February, 1979 and 29th March, 1979 he has so ordered and directed the said officers

The charge against each of the other appellants charged was:-

Each of the five appellants was notified thereof and informed

and has approved and endorsed their action in carrying out those orders' and directions."

"... that being an officer of the Sydney Branch he is guilty of gross misbehaviour in that he has actively persuaded, encouraged and aided members of the Newcastle Branch of our Union to resign from membership of our Union.

The grounds upon which I lay these charges against H. Shooter are that between the 23rd February, 1979 and 29th March, 1979 he has actively persuaded, encouraged and aided within the area of the Newcastle Branch as defined in Rule 47 the following members of the Newcastle Branch: (14 names were set out) employed by the Royal Newcastle Hospital (Health Commission) to resign from membership of our Union."

I have received charges against five full time paid officials of Sydney Branch, including yourself. A copy of the charges laid against you is attached.

I have now been directed by the Federal Executive to summon you, H. Shooter, to a meeting of the Federal Executive commencing 11.00 a.m., on Tuesday, 1st May, 1979, in the Oriental Room, Carlton Rex Hotel, No.56 Castlereagh Street, Sydney, New South Wales, to show cause why you should not be dismissed from office or otherwise dealt with pursuant to Rule 35(d) and why you should not be expelled from membership of the Union pursuant thereto.

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You will be given the fullest opportunity to present your case and may bring any member of the Union as a witness.

Each of them was also informed that the charges were laid pursuant to 1r.13(6) of the organization. The charges were heard on 1 and 2 May 1979. On 2 May 1979 the Executive determined the same by resolving to the effect that the Federal Executive found each of the appellants charged to be guilty of the charge laid against him by Masterson and

(a) he be dismissed forthwith from the office or offices

(b) that he be expelled forthwith from membership of the

1. Always provided that no member may be expelled and/or fined without having been given a full opportunity to be heard and that no member elected to an office shall be dismissed from any office within the Union unless he has been found guilty in accordance with the Rules of misappropriation of the funds of the Union a substantial breach of the Rules of the Unien or gross misbehaviour or gross neglect of duty or has ceased according to the Rules to be eligible to hold office, a Branch

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or the Committee of Management of such Branch shall be the power to expel and/or fine any member of such Branch any sum up to, but not exceeding, two hundred dollars ($200) for each offence, who -

(a) fails to comply with or violates any rule of the Union or any Branch;

(b) works knowingly in contravention of any Award, Determination Order or Agreement

between the Union or a Branch and an employer or employers;

(c) refuses or fails to obey any motion duly resolved in the affirmative at any annual or special meeting of such Branch or of its Committee of Management or of the Federal Council or Federal Executive;

(d) allows his arrears of contributions to exceed the sum of four dollars ($4.00);

{e) fails to attend without reasonable excuse or apology, a meeting of the Branch or the Committee of Management, when summoned to do so by the Secretary;

(£) commits any fraudulent or unlawful act in relation to the funds or property of the Union, or in relation to any election held under the Rules;

(gq) is guilty of wrongfully applying for work with the intention of depriving another member of his situation.

• -unless the following procedures shall have been carried out:-

-he next most convenient meeting of the Committee of Management.

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3. After a penalty of expulsion and/or fine is imposed by the Committee of Management an appeal against such penalty may be made in writing to the Secretary within twenty-eight (28) days of the decision.

The appeal shall be dealt with at a special summoned meeting of the Branch and the member

laying the charge and the member appealing shall each be given a full opportunity of being heard.

4. If the member charged or the member laying the charge is dissatisfied with the decision of the

Branch an appeal may be made by netice in writing forwarded to the General Secretary within (twenty- eight days of the decision appealed against.

6. Any member shall have the right to lay a charge against any member or officer direct to the General Secretary and/or President. Such charge to be dealt with by the Federal Executive under the provisions of Rule 35.

(a) to hear and determine an appeal by any member or officer lodged pursuant to Rule 13(4) or Rule 51(3);

{b) to hear and determine the charges made against any member direct to the General Secretary pursuant to Rule 13;

(c) to appoint any officer or employee of the Union or other person to investigate any complaint about the conduct of any member of the Union, record the evidence = and statements and submit the same with his report thereon to the Federal Executive. The Federal Executive shall read and hear such record and report and may thereon

determine whether any charge should be laid against any membez pursuant to Rule 13 hereof provided that the investigating officer shall not vote in any such

(d) for the purposes of Sub-Rules (a) and (b) hereof the Federal Executive shall have power to

or complaints to suspend any officer from performing all or any of his duties for a period not exceeding three months;

(iii) to dismiss from office any officer found guilty of misappropriation of the funds of the Union or gross misbehaviour or gross

_ neglect of duty or who has ceased according to the Rules to be eligible to hold the Office;

(e) an appeal shall lie to the Federal Council at the instance of the member or officer charged from any decision of the Federal Executive under this Rule. Notice of Appeal shall be given to the General Secretary in writing within 14 days of the decision being communicated to him and shall set forth in full all the matters that the Appellant desires to be considered. The Appeal may be dealt with by Federal Council in meeting or by postal vote."

It is in r.5l, however, that provision is made in the rules, or primarily msde for the dismissal from office of an officer -on -the ground of gross misbehaviour. Rule 51(3)(a), (b) and

(a) The Branch Committee of Management may remove from office any officer or member of the Committee at a meeting of the Branch Committee of Management to which the person

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concerned has been summoned in writing signed by the Branch Secretary or Branch

President to show cause why he should not be so removed. Provided that no such person

shall be removed from office unless he has been found guilty of misappropriation of the funds of the Union, or gross misbehaviour or gross neglect of duty, or has ceased,

according to the Rules, to be eligible to hold office.

A person summoned to show cause Pursuant to Paragraph (a) of Sub-Rule 3 of this Rule shall be given at least fourteen (14) days notice of the time and place of the meeting of the Branch Committee of Management to which he is summoned. The notice summoning him shall also specify the ground or grounds upon which it is proposed to consider his removal. The Branch Committee of Management May preceed with a hearing to determine a matter under this Sub-Rule notwithstanding the absence of the person summoned if due notice of the hearing has been given in accordance with this Sub-Rule.

An appeal shall lie from any decision pursuant t9 this Rule from the Branch Committee of Management to the Federal Executive. Notice of Appeal shall be given in writing to the General Secretary within 14 days of the decision being communicated to him and shall set forth in full all the Matters that he desires to be considered.

The appeal may be dealt with in meeting or by a postal vote."

As to the resolutions of Federal Executive the appellants have

Rules 13(6) and 35(10) which were relied upon as providing authority for the laying, hearing and determination of the charges were not actually rules

of the organization at all. The contention was that

although Federal Council had purported to make such

rules on 10 August 1978 it was not authorised to do so

(a) the conditions imposed by 1.28 upon the making or amending of rules by Federal

(c) at all relevant times Branch representation in Federal Council was in such imbalance that Federal Council was not validly constituted and could not validly enact rules or amendments of

(da) the invalidity attaching to Federal Council extended to the Federal

The sanctions imposed were not, on their proper construction authorised by rr.13(6) and 35(10) if

charges direct to the General Secretary, rr.13(6) and

the requirement of regulation 115(1)(d)(v). Nevertheless because there is in these rules so much control of the Federal Council I do not think that the rule in question does offend s.140(1) even if it does impose conditions or restrictions

According to its terms, the new rule renders all Members and branches subject to the risk of changes in the rules which constitute the "conditions", upon which members are associated together, at the will of the small number of the Federal Councillors. Subject to relevant laws and controls to be found in the rules it is that small number of men who may alter those conditions. It is easy to contemplate the lengths to which an irresponsible or oppressive Council might go in changing the conditions. The first possibility that springs to mind is that it might attempt to abolish r.28(2), (3) and (4), the plebiscite rule (1.26), or the review of decision rule (r.23). But each of these rules is so important in relation to one of the chief objectives of the Act, namely the encouragement of democratic control of the organization and the full participation of members in its affairs (s.2(f£)) that the removal of any one of them would in the circumstances of this organization offend the provisions of s.140(1)(c). Except aS an exercise designed to deprive members of appropriate and reasonable democratic participatory rights there would be no basis for such removal. There is

therefore no ground for anticipating that the controls on the

Federal Council provided in those provisions could be removed by the Federal Council in the exercise of its powers under the new r.28(5). And the controls in the rules themselves are real. Under r.28(2), (3) and (4) any member may activate his branch to take action to ensure that a rule amendment thought desirable is not only placed on the agenda at the biennial Federal Council meeting but is brought to the notice of ali branches. [It is the effect of r.23 in the Branch structure of this organization that, on request, of two branches in different states voting in special meeting, the General Secretary shall call a special meeting of Federal Council to review any previous decision. And pursuant to 1.26 upon a majority of branch members present at special meetings in é¢ach

of two branches, which having regard to quorum provisions

• eould constitute sixteen members in all, resolving that any

decision of Federal Council be disagreed with and submitted to

a referendum of the members of the organization, that decision

So far as the Act speaks on the matter of rule amending rules it is to be noticed that regulation 115, which is given statutory authority by s.132, states simply that as a condition of registration the affairs of an association shall be regulated by rules providing, in relation to the association, for, inter alia, "the alteration of its rules". There is no suggestion that any particular limitations or

guidelines are to apply to the rule making process of the body

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on which the rule alteration power is conferred or any constraints within which such a body may act. The maintenance of this situation may well be explained by the presence of

There are of course authorities which deal with the adequacy of controls required by regulation 115(1)(d)(v). But nene, I think, would require that controls such as those referred to above not be regarded as satisfactory. In this case the rule in question, the new rule 1r.28(v), was made after observance of a procedure as to which no suggestion is made that it was not sufficiently democratic. In a slightly different area, namely, the nature of the provisions made for the election of members of committees and officers there are judicial statements emphasising that the matter is one, "primarily ... for the members of the association to determine having regard to the nature of that body and the circumstances which exist in relation to its membership", per O'Mara J. in Thornton v. Mackay (1946) 56 C.A.R. 561 at p. 590. His Honour added, "The same is true of the provisions for the control of ~such Committees by members of the Association." But of course such freedom must be exercised in accordance with the law. Reference to this freedom is made by Bowen C.J. in Re Airline

Hostesses' Association 48 F.L.R. 214 at p.221, in the

"What must be kept constantly in mind is that Organizations registered under the Act may

dd Abbot A At Av ctl wire te nat irae bt oe ee Ned ted VR. CELL at Ad Rt oe

represent many thousands of members all over Australia. These members must be represented democratically but also efficiently and because of the division of Australia into States and Territories, a federal system of representation would be normal. The courts have frequently considered various types of federal systems and from the cases it is clear that organizations are able to design specific structures with different checks and balances to cater for their own individual needs. The only parameters are those embodied in reg.115 requiring election for a committee of management, various officers and any Other policy-making or management body. As was said in Lovell v. Federated Liquor and Allied

industries Employees' Union of Australia per Smithers and Evatt JJ.: 'A constitution suitable for one union may be unsuitable for another ... The rules must be designed to ensure stability in Management and at the same time to avoid installing officers who cannot be removed. In the designing of rules appropriate for an organization of employees much must be left to the judgment of those who make the rules'. {And see generally Lovell's case; and Wiseman v. Professional Radio and Electronics Institute of Australasia.)"

Similarly, to my mind, it was primarily for the membership to decide by what body and subject to what restraints, if any, the rules of the organization might be amended. And this membership of this organization did operating through

The Federal Council is democratically elected in accordance with s.133 of the Act and comprises members representing each Branch. Its members regularly face the electorate. All rules which it makes must be certified by the Registrar to comply with the Act and to be not contrary to provisions of the Act, of the regulations or of an award and

not otherwise contrary to law. And of course no rule it makes

May contravene the provisions of s.140(1). The validity of the new rule 1.28(5) must be assessed in the light of the rules considered as a whole. In the totality of the situation there is to my mind much scope and encouragement for democratic action in relation to the organization and for member Participation in its affairs. After all, the Federal Council has to be considered as the instrument of members for the active pursuit of the objects of the Association. It is sometimes necessary for the rule changes to be made swiftly. And, if democratic procedures additional to those existing in a case like this are to be imposed there are no precise Standards that can be laid down. If the attempt is made by the Court it would rather seem to be putting into effect its

own opinion as to what is desirable in the way of Union rules

and Union management, which as O'Mara J. observed in Thornton

NW. Mackay (Supra) at p.590 "... is not a function of the

Court.". The whole problem is no doubt one of balancing

contepts of an imprecise nature. But considered even by

themselves, rr.23 and 26 are potent instruments for democratic '

action of the membership. They operate on the conduct of

Federal Council in a mandatory fashion, and can be implemented

by even a handful of members, and with great speed. Where, as

here, there is so much scope for effective membership action

it seems to me the words of the Full Court in Grove v. Federal

Miscellaneous Workers' Union of Australia (1972) 21 F.L.R. 72 at p.81 are in point, namely, "There is a stage in the

organization of voluntary associations at which authority must

speak. At that point subject to the twin checks of honesty and vigilance the risks of improper use of a power of

The Effect of Section 171B - (Respondents' Contention No. fiv))

However, because of s.171B of the Act, the purported amendment, as an act performed in good faith by a collective body of the organization, has validity notwithstanding the failure to comply with 1r.28(2). Accordingly, the purported amendment of r.28 must, at this stage, be regarded as having been validly made. It follows therefore that so far as power to adopt rr.13(6) and 35(10) on 10 August 1978 was concerned, the Federal Council was fully equipped to adopt those rules.

"(6) Nothing in this section validates the expulsion or suspension of, or the imposition of a fine or any other penalty upon, a member of an organization which would not have been valid if this section had not been enacted."

It is clear that the dismissal from office and expulsion which was suffered by the relevant five appellants

constituted penalties within the meaning of this provision.

It is just as clear that such penalties would not have been valid had 1r.28 not been amended, as it was, in September 1977 because, but for that amendment, rr.13(6) and 35(10) could not have been made by Federal Council without the

It was argued by Mr. Gray that s.171B(6) was only effective to protect persons upon whom penalties have been imposed where the invalid act which is to be validated by the section waS an act or operation in respect of the imposition of the penalties. Here, he argued, the act was too remote from the imposition of the penalties. He pointed out that it was separated from the imposition of the penalties by the act of adoption by the Federal Council of rr.13(6) and 35(10) in August 1978. Truly there was such a separation, but the words of s.171B(6) are so unambiguous that the submission as to the effect of the remoteness relied upon cannot be accepted. Thus s.171B can -not assist the respondents in respect of the

imposition of the penalties imposed in proceedings under

The appellants' contention in support of contention

numbered 1(b) above depends upon there being proof that there

was so great an imbalance in representation on Federal Council of the seven branches of the organization that, contrary to s.140(1)(a), r.21 which provides for Branch representation on Federal Council, failed to provide for the control of Federal Council by the members as required by regulation 115{1)(a)(v) and, further that, contrary to s.140(1)(c) that rule imposed upon members conditions which having regard to the objects of the Act and the purposes of registration of organizations

under the Act were oppressive, unreasonable or unjust.

. The evidence upon this matter is almost exclusively contained in an affidavit of the appellant Bignell. It is in

"19. During the period of my association with the Union, the size of the different branches of the Union has not significantly fluctuated. During most of this time, the different branches of the Union have contained the following approximate percentages of Union membership:-

Melbourne-Geelong 35% Queensland 12% South Australia 9% Western Australia 5% Tasmania 1% Sydney 33% Newcastle 5% 20. The last year for which I have precise

figures as to the percentage membership of the Union in the different branches is the year ended 30th June, 1975. During that year, each Branch had the following percentages of the Union:-

i eee ore ta le AS EMSS She thor Megunliciaain Tot Maratea raisin LER EE able CBI ACA enn MNCWEhes FOC Rtn NE Ie acne € Stars Cat lashes An.

South Australia 9.28% Western Australia 5.34% Tasmania 1.02% Sydney 33.00% Newcastle 4.76%"

If this evidence be accepted the situation disclosed clearly reveals a degree of imbalance requiring consideration. But it was not accepted by the learned trial judge. His Honour heard Oral evidence of this appellant over eight days. He concluded, for reasons expressed, that he should not accept his evidence. He said "I am not prepared to accept any evidence that Mr. Bignell gave which is not corroborated by independent documentary evidence." If this conclusion may properly extend to the contents of the affidavit then there is no evidence of the state of Branch representation in the

It is contended for the appellants, however, that in

the particular circumstances of this case the contents of the affidavit should, as a matter of law, be treated as reliable evidence -despite the general lack of credibility of the witness, The particular circumstances referred to include, the omission from the cross examination of Bignell of any question going to the accuracy of the contents of paras. 19 and 20 of the affidavit, the inherently reasonable and credible nature of the particular facts deposed to, the ready availability of confirmation or contradiction of those facts by reference to available documents, the knowledge of the

organization of the accuracy or otherwise of the matter stated

@ 41. and the capacity of the organization to contradict the statements if in fact they were inaccurate. Of course the material facts were necessarily within the knowledge of or available to the Secretary of the organization, and although

the Secretary gave evidence on various matters he was asked no

questions on the subject. It was submitted that it is to be

seen from the manner in which the case was contested that the testimony in paras. 19 and 20 of the affidavit was just not a

The principle invoked was that stated by Lord Herschell in Browne v. Dunn (1893) 6 R 67 at pp. 70 and 71 as

"Now my Lords I cannot heip saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth On a particular point, to direct his attention to the fact by some question put in cross examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then when it is imposssible for him to explain, as perhaps he might have been able to do, if such questions had been put to him, the ciccumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him and as it seems to me that is not only a rule of professional practice in the conduct of a case but is essential to fair play and fair dealing with witnesses. ...

All I am saying is that it will not do to impeach the credit of a witness upon a matter on which he has not had any opportunity of giving an

eT ad edad hn nde een er eA be Le aL ee MR Oa tn oe dee

suggestion whatever in the course of the case that the story is not accepted.

taken that these witnesses ... were telling the truth when they said 'We did bring before Mr. Dunn the fact that ..."

(1979) V.R. 47 and Bulstrode v. Tumble (1970) V.R. 840.

Reference was made also to the discussion of this principle in

Hardy v. Gillette (1976) V.R. 392 Read v. Nerey Nominees

principle has two aspects, first as a rule of practice "designed to achieve fairness to witnesses and a fair trial and

secondly as a tule relating to the weight and cogency of

' "evidence. It is particularly this second aspect which is currently of importance. Concerning it the learned said,

"the rule sayS no more than that if a witness is not cross examined upon a particular matter upon which he is given evidence, then that circumstance will often be very good reason for accepting the witnesses evidence upon that matter."

depend upon the circumstances. In Precision Plastics v.

2 to have seriously under estimated damages, the view was

Whether it is a sufficient reason in any particular case must

132 C.L.R. 362 a personal injury case in which a jury was said

that the jury must have failed to believe the plaintiff, when, in answer to the question "How long do you intend to continue working?" she replied "I like to work very much. Until the

until I died I like to work as far as work is concerned."

Gibbs J., as he then was, with whom Stephen J. agreed said.

"If it had been intended to suggest that she was not speaking the truth she should have been cross-examined on this matter so that she might have an opportunity of explanation (cf Browne v. Dunn (supra)}, but she was not cross-examined on her answer. The respondent's evidence .... was not inherently incredible. She had in fact been engaged in employment during the time she had been in Australia before the accident, and had only given up employment when it was necessary for her to care for her child. In these circumstances, in my opinion, the jury acting reasonbly were bound to accept her evidence ... that she had the present intention of working until she reached fifty five."

It is apparent therefore that according to circumstances it

nin tem inberteeris oe Dane eemei mule were MYL artes Steet war

may become the duty of the tribunal of fact to accept evidence, not inherently incredible, where the witness giving

it has not been cross-examined thereon. The circumstances in

this case are those outlined above. It is particularly

important that the-witness spoke of the 1975 Branch membership figures which he quoted as being those "for the last year for

which I have 'precise figures.". This was a statement of such

strength on a matter so within the respondent's knowledge that

it almost demanded questioning if it was not accepted as being

; z . true. The statement of the degree of fluctuation of branch $ membership invaded the area of the Secretary's special knowledge and was calculated to evoke denial if not true. No Zeal explanation of the omission to cross examine or : contradict this evidence was submitted. Apart from all other considerations the evidence was a critical and immediate : {

a ne Cea Sen Beeew Tee REE ee ve NeRTe eEENTS etre WUT eee OWEL Th, SIRI Lot bE eo. oot ACen ORR fame

threat to the constitutionality of the Federal Council and could hardly not have been recognised as such. In view of the ease with which the evidence, if untrue could have been contradicted it is reasonable to think that the respondents preferred it in the form in which it was to that in which might emerge if the matter were pursued. In the result, according to the principle in Browne v. Dunn (Supra), the

representation at all material times is established. It is

(a) Members in each of the States of Queensland, Tasmania South Australia and Western Australia shall elect one Federal Vice-President and one Federal Councillor.

(b) Members attached to each of the Melbourne and Geelong Branches in the State of Victoria shall at a conjoint election Pursuant to Rule 48A elect one Federal

(c} (i) members of the Sydney Branch in the State of New South Wales shall elect one Federal Vice-President and one Federal Councillor (for the purpose of this Rule the Australian Capital Territory shall be considered part of the Sydney Branch), and

(ii) members of the Newcastle Branch in the State of New South Wales (as defined

in Rule 47) shall elect one Federal Vice-President."

Disproportionate Branch Representation (Significance) -

As to this disproportion of Branch representation the learned trial Judge found that it was, to use the phrase adopted in McLeish v. Kane & Ors (1978) 22 A.L.R. 547 "within the spectrum" of disproportion which is acceptable. In other words he found that that disproportion established by r.2l, was not of such degree that it could be said that the rule imposed upon members conditions which, having regard to the ebjects of the Act and the purposes of registration, are oppressive, unreasonable or unjust. This was essentially a finding of fact and therefore should not be set aside save where it is manifestly clear that it is erroneous. For

According to Branch membership alignment 27.88% of the members may have eight votes and the remaining 72.12% six

votes if South Australia, Western Australia, Tasmania and

Putting the matter another way, it takes 35 times as Many members in the Melbourne-Geelong Branch and 33 times as Many members of the Sydney Branch to elect one member to Federal Council as it does for Tasmanian members to elect one member. It takes six times aS many members of the Sydney

branch to elect one Council member as it does for Western

Australian members to do so. It is clear that majorities on

Council may represent relatively small proportions of the

To protect smaller Branches from domination by larger branches disproportionate representation to some degree is acceptable. In this case the question is whether having regard to all the circumstances it has been shown, for the purpose of these inter partes proceedings, according to the civil onus, that r.21 establishing the Federal Council imposes upon the membership conditions that are oppressive, unreasonable and unjust. Relevant for this purpose are the

provisions in rr.23 and 26. Rule 23 is in the following

terms:- *23. - SPECIAL MEETINGS OF FEDERAL COUNCIL AND FEDERAL EXECUTIVE ~l. Upon a request of a majority of Branches

{whose member-ship is a majority of the members in a particular State) in each of two or more States voting on the subject at special meetings of the ~ -Branches summoned for the purpose, the General Secretary shall call a Special Meeting of the Federal Council or Federal Executive to review any -previous decision and/or £o receive any recommendations in respect thereof, provided that in a State with only one or two Branches then for the purpose of this Rule one of those two Branches shall be regarded as a majority of Branches in such State.

2. Such request for a Special Meeting shall be in writing and shall specify fully the object of the meeting and contain a full report of the minutes of the Special Meetings of the Branches including details of voting. =

ee ee NY SEE ao OCS wen SENT a ee Deen SekMrre mcr i ao leL og

3. The Federal Executive may at any time call a Special Meeting to consider matters of urgency.

4, Notwithstanding anything contained in these Rules, the Federal Executive shall, when it deems it advisable to do so, have power to submit any Matter to a referendum of the members of the Federal Council in lieu of calling a Special Heeting."

Council and/or Federal Executive is disagreed with by a majority of the members of any two Branches in any two States, present at a meeting of the Tespective Branches specially called for the purpose of considering whether that decision should be disagreed with and submitted to a referendum of the members of the Union, such Matter shall thereupon be submitted to a referendum of the members of the Union. The referendum shall so far as practicable be conducted in the same manner as Branch Elections under Rule 48. The decision of the members of the Union at such referendum shall supersede the decision of Federal Council and/or Federal

The procedure provided in r.23 does not deprive the

regarded as unimportant in the matter of the ascertainment and

under Branch pressure would tend towards achieving results

Significance is enhanced by the referendum provisions of 1.26.

The referendum provisions would always be in reserve. Having regard to the quorum provisions a referendum may be achieved,

in theory at least, by eight members in each of two branches.

The inequalities in Branch representation on Federal Council would appear to cperate mostly to the disadvantage of the large branches. But those branches acting in concert are well able to protect themselves through rr.23 and 26. But they may not act in concert. If they are in conflict then the issues will be decided by the over-represented smaller branches. But this would be the case, also, if the voting power of Melbourne and Sydney were raised, for instance, to six votes instead of two. Because of the existence of two large branches it is inevitable that if they are in conflict

remarks of O'Mara J. in Thornton v. Mackay (1945) 56 C.A.R. 561 at 590:-

"Whatever may be the power of a Court in relation to union rules when it has cognizance of and is settling an industrial dispute its powers under s.58D are definitely limited. So far as that section is concerned I do not conceive it to be the function of the Court to put into effect its own opinions as to what is desirable in the way of union rules and union management. 'The section leaves the members of an Organization free to adopt such rules as they see fit subject to those rules complying with the prescribed conditions and not being disallowable under the section. As to a scheme of government the members are free to choose, for example, either a federal system or a

and the observations of the Commonwealth Industrial Court in

P.LLR. 153) at 158, and Luckman v. Australian Postal

Telecommunications Union (1978) 28 A.L.R. 393. In Crealy's

unitary system, they are at liberty to function with or without branches and subject to the prescribed conditions they may divide power amongst the organizations and the branches as they consider proper."

"This, like many organizations in Australia is one in which there are divisions in each of the States with limited powers exercisable within the State and central controlling bodies comprised of delegates elected by the members of those divisions. In the creation and maintenance of such a body it seems to us not unreasonable that its members should seek to ensure by constitutional provisions that the numerically smaller divisions should have an effective voice in its Federal conference and in its Federal -committee of management. In this particular case if New South Wales had a majority of the members -of the association as it is conceded it may at times in the future have, it could, if all voting in the Federal conference was to be strictly limited to membership strength, elect ail the

• office bearers from that division and thus control

the policy and activities of the whole association. It may well be that employees of the bank, particularly those living in other States would refuse to join or remain in a body so controlled in which their own influence could be very remote, and that in association of employees of a bank upon a Federal basis would on such terms be impossible.

The extent to which weight should be attached to these considerations is a matter preperly left for the determination of members of the association in the rules they adopt subject only to the qualification that the rules do not offend against the provisions of the Act or Regulations.

ete ic. cae cals 2 ee Baad ie eet ie kd Seabed eRe Sra AE NLL a AR ir Na lL ad La Moco na erat apt orad

In Luckman's Case J.B. Sweeney J. considered it critical that

the smaller branches had the numbers on Federal Conference and Federal Executive to thwart the will of the two largest branches. But it is clear that he was materially influenced

by the fact that as in Mackenzie v. Administrative and

Clerical Officers' Association, Commonwealth Public Service

(1962) 5. F.L.R. 342 the two largest branches in combination, representing a majority of the membership, were unable themselves to require a plebiscite. It was put by Mr. Clarke that the availability of plebiscite provisions although relevant to the requirement that the rules provide for control of the governing bodies of an organization, is not relevant to the question whether a rule specifying the construction of any such body imposes on members conditions which are oppressive, unreasonable or unjust. I am unable to take this view. Any rule under attack must be considered in the context of the

Where there is a situation like that existing in this organization, comprised as it is, of two large branches with substantially equal memberships and six small branches, there seems to me to be considerable scope for the application of two factors, namely, that subject to the requirements of the Act, it is ultimately for the members to decide for themselves the structure of their governing bodies, and that a certain amount of over representation of the smaller branches

is acceptable. Also in such a case, history may be be a guide

as to whether there is evidence that as a matter of practice the apparent over representation of small branches has created dissatisfaction or led to the frustration of the will of any branch or group of branches. This organization has existed since 1911. There is no evidence that any branches have resorted to 1.23 or 1.26. In these proceedings the Organization speaking presumably for all save the Sydney Branch has no complaint to make as to the constitution of the Federal Council or Federal Executive. The complaint from the Sydney Branch is from members of long standing who give no evidence of earlier dissatisfaction with the constitution of Federal Council or Federal Executive, and do so now, only for the ulterior objective of avoiding disciplinary action for

conduct the general nature of which is described hereafter and

which drew the strongest censure from the learned trial Judge.

Sherriff v. Townsend (1980) 48 F.L.R. 20 where rules were considered to offend because of disparities in Branch representation it was a feature that the operation of the rules was likely to lead to domination cr at least excessive influence of paid officials. The same feature waS present although less dominating with respect to the Federal Executive of the Australian Postal and Telecommunications Union which

was the subject of the decision of 3.8. Sweeney J. in

Luckman's CaSe (supra). There is no such feature here, : Subject to such considerations as are referred to by O'Mara { J., the ideal is one vote one value. But in Federal ' Situations the ideal is not demanded. For reasons of State interests that ideal is not implemented in the Australian q constitutional provisions concerning the Senate. Much has to / depend on the nature of the organization.

With respect to this organization the evidence does not satisfy me that r.21 offends either s.140(1)(a) or

If then rr.13(6) and 35(10) are now to be treated as

valid questions arise as to whether the charges laid by Mr.

Masterson direct to the Federal Executive were properly laid in accerdance with those rules, and whether by virtue of those tules the Federal Executive was entitled to impose the \ sanctions which it did, namely, dismissal from office and

Putting aside, for the moment, the provisions of r.35(10) there is only one rule which authorises a member to lay a charge direct to the Federal Executive, namely r.13(6). There is only one rule which authorises dismissal from office

-O£f a Branch officer, namely r.51(3). 'There is only one rule

cores thao ee es Ti ct eee ante beS Se ei ieleantertt RMA AO MD ere PL hardier mnie Tat Meaa atonal se nen abet Habit mittatsmane ibe, Ut endl

which authorises the expulsion from the organization of any member, namely, r.13(1). It is arguable that 1r.35(10) purports to empower the Federal Executive to impose either of such sanctions in an appeal under r.13(4) or 51(3), and in a charge against any member made direct to the General Secretary in respect of any offence. But I do not think this follows from the construction of r.35(10) in the context of the rules.

The immediate task is to construe 1r.13(6). Te purports to authorise a member to lay a charge direct to the General Secretary or President against any member or officer. The guestion immediately arises, what charge? The rule does not expressly specify what charge. Is then the rule to be treated as void for uncertainty? I do not think so. The rule directs that the charges which may be brought direct to the General Secretary or President are to be dealt with by the Federal Executive according to r.35. The reference in r.35(10)(b) to r.13 is necessarily a reference to r.13(6). In a literal sense 1r.13(6) could be satisfied if it is as applicable generally to all members who are not officers and to members who are officers against whom the only penalty sought is a fine. But I do not think this is the sense in which it is used. Rule 13 is headed "Offences and Charges". I think this heading indicates that the contents of the rule have an application of a general nature to offences and charges wherever arising under the rules. There is

discernable in its terms, a consciousness of the distinction

fl naRt toilette Nach ate Slee tonite RCI ea 2 Pate nt S LI, ne ROL og Bl

Waly settee nama ene A Ns Ae sho shh lal alba DA ates troll

between a charge against a member in his capacity as a member and a charge against a member who is an officer in his capacity as an officer, Sub-rule (1) provides for charges against members whether officers or not, in their capacity as Members simpliciter. That sub-rule has nothing to do with charges against members who are officers in their capacity as officers. Under sub-rule (1) a person who is an officer may be charged and fined but not expelled. This follows from the second proviso in r.13(1) and the assumption on which it is based, namely, that to expel a member who is an officer is to dismiss him from office. The charge is against him in his Capacity as a member. The charges which may be brought under Sub-rule (1) do not include charges which may lead to dismissal from office. But when one comes to sub-rule (6) the Situation is different. It refers to charges against members and officers. That is to say, against members in the capacity of members simpliciter and against officers in their capacity

as officers. A charge against an officer in the capacity of

an officer just does not lie under sub-rule 13(1) to (5). But

sub-rule (6) does deal with charges against officers. It provides that such charges may be made direct to the General

Secretary or President and that they shall be dealt with by

"the Federal Executive pursuant to 1.35. Rule 13(6) travels

Outside the classes of offences referred to in 1r.13(1) and makes a provision concerning both those inside r.13(1) and those known to the rules but outside those enumerated in that

sub-rule. And what it does in relation to both classes of

charges is to provide an alternative tribunal to that elsewhere provided in the rules in respect of a charge in

Clearly r.13(6) does not disclose an intention to create new offences for which officers and members may be punished. It is reasonable to interpret it therefore as providing a method of proceeding against officers or members in respect of charges for offences already created by the rules. A charge against an officer as such for conduct in respect of which he may be found guilty and dismissed from office (r.51(3)) is one such charge. This is the charge which was brought against each of the five appellants whom the

It is contended, however, that the effect of £r.35(1), particularly r.13(10)(b), is so to restrict the power of the Executive to hear charges brought pursuant to r.13(6) that a charge against an officer as such cannot be heard by it, So to hold would flatly contradict the terms of r.13(6). That rule construed according to my view, declares that such charges shall be dealt with by the Federal Executive under the provisions of 1.35. Rule 35(b) is the only part of r.35 applicable to charges under 1r.13(6). The contention is based on the use of the words "any member" in r.35(1)(b) the absence therefrom of any express mention of officers. The omission of

a reference in r.35(10(b) to officers, alongside the specific

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mention of both members and officers in 1.35(10)(a), is said

The terms of r1r.35(10)(b) are not themselves inconsistent with r.13(6). The use of the expression "any member or officer" in r.35(10)(a) is less significant than it might appear because an appeal under r.13(4) will necessarily be by a member and that under r.51(3) is very likely to be by an officer. That the expression "member" in 1.35(10)(b) should be used to include both member and officer, is in the context, unexpected. But literally it covers members who are officers and those who are not. That it is intended to do so is indicated by the combined effect of 1£.35(10)(c) and r.35(10)(d)(i). Rule 35(10){(c) provides for investigation of "a -member" to determine whether a charge may be laid against him under r.13. Rule 35(1)(d) provides that pending the investigation any "officer" may be suspended from the performance of his duties. If on investigation it is decided that the person under investigation should be proceeded against pursuant to 1.13 the proceedings would have to be under r.13(6). Such a proceeding would have to be heard and determined under 1.35(10(b). Thus it is indicated that an officer may be the person charged. But most importantly, r.13(6) in a context where the capacity of a person as a member or an officer is of critical importance, makes a categorical provision concerning the making of charges against

both members and officers, and unequivocally directs that such

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charges are to be dealt with by the Federal Executive under r.35. It would in my opinion require something equally unequivocal to support an interpretation of r.35 to the effect that, after all, the Federal Executive did not have power under +©.35(10)(b) to deal with a charge brought direct under r.13(6) against a member in his capacity as an officer. There

Having regard to the foregoing it is my opinion that as the rules stood in May 1979 it was competent for a member to charge an officer with gross misbehaviour direct to the General Secretary and for the Federal Executive to hear and

So far as concerns the sanctions available to the Executive in respect of charges brought pursuant to 1t.13(6) the following observations may be made, Rule 35(10) confers on the Federal Executive the power to impose various sanctions upon officers and members including dismissal from office and expulsion. If that rule be construed as providing, for instance, that officers might be expelled in respect of an offence for which the rule creating the offence limits the

punishment to loss of office it would offend the assumption upon which r.13(1) proceeds. That rule clearly proceeds on

the assumption, namely, that expulsion of an officer whose

Aaadicotmabistirna n. athe andi Tonteiet sr bnitiaMiaia LR Sammlelia ear ancients a

4 el Aaa nm eh emia sare a EAA li alias ttle Mama ea al cA ce Tema Nhat Bete

only guilt was having committed an offence under r.13(1) would contravene the provisions of s.133(1)(f£). Rules 51(3) and 29(4)(a) reflect the same assumption. According to the judgment of Fitzgerald J. in Hills & Ors v. Higgins & Ors. No. NSW 106 of 1981 dated 12 February 1982, unreported, this assumption is erroneous. However, this does not affect the relevance of the assumption to the construction of r.13(10) in the context of the rules generally. Accordingly, I think r.13(10) on its propes construction does not purport to authorise expulsion of an officer not found guilty of one of the classes of conduct specified in r.51(3). '

It is to be noted that the introductory words of r.35({10)(d) are, "for the purposes of Sub-Rules (a) and (b) hereof the Federal Executive shall have power to". Those words reflect, I think, the notion to be discerned in r.13(6) that it merely provides an alternative tribunal to hear charges and does not change the nature of charges which may be brought or the punishment therefor. The structure of r.35(1) may well be regarded as implementing this notion in respect of appeals and charges heard pursuant to r.35(10(a) and (b). TI think this is a correct approach. Accordingly dismissal from effice but not expulsion is available in respect of an officer who is found guilty of conduct of the class specified under r.51(3). Expulsion is available in respect of a member other than an officer who has been found guilty of an offence

created by r.13(1). A £ine, but not expulsion may be imposed

upon a member who is an officer who has not been found guilty of conduct of the class specified in 1r.13(1). So construed the notion that the expulsion power in 1r.13(10) created a power to expel members at the will of the Executive is not present. The powers of punishment are granted for use respectively in relation to charges for which they are

appropriate according to the punishment provided in relation

thereto under the rules creating the relevant offences. _

Accordingly, in the case of the five appellants who were found guilty of the offence brought against them the only sanction available to the Federal Executive was dismissal from office. Mr. Gray argued that the conduct alleged against

those appellants as constituting the gross misbehaviour with

pha aca tater brreanernk Rte hart amGemacid ies gE Sisk tt, rm chtantrnbct etl Sensei Me etme bat wis Be Nort ade Pree Dain AL

which they were charged and specified in the stated particulars of such misbehaviour was conduct which offended against r.13(1)(a) and (x). He argued that the charges should be treated as charging conduct justifying dismissal from effice and expulsion. I do not consider this to be sound. There was only one charge against each appellant and that was of conduct specified in 1r.51(3). The particulars did not convert that charge into two separate charges, namely one of gross misbehaviour and one of conduct offending r.13(1). Accordingly the only sanction available to the Federal

ns ea meatal catechol Ei haben vhtth adele ele ecient! «

If the appellants had been charged with gross misbehaviour and found guilty and charged subsequently with conduct offending r.13(1) the position would have been different. On the latter charge expulsion would have been an

is the Court's Jurisdiction under Section 141 Discretionary?

In relation to this question I have had the advantage of reading the reasons for decision herein of Sheppard J. I agree with his observations and conclusion. Exercise of the Discretion - (Respondents' Contention No. (viii)

If then the Court's jurisdiction to make an order directing members of an organization to observe and comply with the rules of an organization, in particular respects is to be exercised according to the Court's discretion that discretion is no doubt a judicial discretion to be exercised according to principles derived from the nature and purpose of the grant of such jurisdiction. As indicated above the validity of the grant of jurisdiction contained in s.141 depends on the view that when legislating upon a subject Matter within the legislative competence of the Commonwealth

namely, conciliation & arbitration for the prevention and

settlement of industrial disputes extending beyond the limits of any one State, it is within Commonweaith power to provide

that a Court may make orders incidental to carrying into

effect the Tegislative scheme. The legislative scheme includes the registration of organizations of employees and employers and the government of such organizations according

to rules which must be certified by the Industrial Registrar

as being in accordance with the Act and which are binding upon

the members. As was said by Starke J. in The King v. The

Commonwealth Court of Conciliation & Arbitration Ex Parte

"In my opinion, it is implicit in these provisions that the rules of the organization shall be performed and observed by its members; the rules impose a duty upon the members of the organization to observe and obey them."

And the enforcement of the rules of an organization "is

Plainly a matter incidental to the performance of the

functions of the Court in the prevention and settlement of

industrial disputes." per Latham C.J. in Ex Parte Barrett

Court of Conciliation and Arbitration which did have the function mentioned. And it is clear that the discretion would

be exercised by that Court by reference to the relationship of

the observance of the rules~by members of organizations to the

prevention and settlement of industrial disputes. As

expressed by Beeby J. in Chapman v. Sear (1931) 30 C.A.R. 165 with reference to s.58E of the Act of 1904-54 the situation

" 'TIt has been held by the' (Arbitration) 'Court that this unusual power, vested in the Court as an ancillary power to the hearing and determination of industrial disputes, should not be exercised Merely to enable parties to determine their domestic disputes, but that there must be some element of public interest in the powers in issue to justify the Court in exercising this discretionary power with which the Court is armed, not for the purpose of enforcing the civil rights of individuals, but to enable the Court, when industrial considerations appear to make it necessary or desirable to do so, to insist upon observance of the rules, ..."

And as expressed by Dixon J. as he then was, in Ex Parte

"Section 58E then undertakes a further step in the regulation and control of the internal affairs of registered industrial organization. It does so

-not for the purpose of protecting the civil rights of individuals and of enforcing social contracts. The purpose is to further the ends of the Arbitration Act as an industrial measure and Supervise the administration of the rules, the adoption of which it is part of the plan of that Act to require. It is, we may assume, within the legislative power granted by s. 51 (xxxv.) and (xxxix.) to deal with the rules of organizations and, when it appears conducive to the ends of the arbitration power to do so, to see that the rules are observed. From this it follows that the legislature might have laid down the circumstances in which the enforcement of rules should be undertaken, the circumstances so far as relevant to the power over industrial arbitration and conciliation. It preferred to arm the Court with a discretionary power to intervene on the complaint of a member."

Se ee WO tat ee tee rm OFA ites Sod Wat Srna bee el ilirida aa Leda PF heey mh a Nee Maram tr Sea re Oe

ee 8 eer ee ee eee ee - el ec ot TLE a | ee iil ooh e ne)

That these words were spoken in relation to the question of constitutional validity of the predecessor of what is now s.141 does not detract from their relevance to the present problem. Rather the reverse. When in 1956 the Act was amended and s.58E which by then had been re-numbered s.81, became s.141, the jurisdiction to make orders for the observation of rules passed to the Commonwealth Industrial Court. Section 141 was in the same terms as s.81. It would be for the Commonwealth Industrial Court to proceed by reference to the same considerations. And there can be no doubt that this Court should do the same. In relation to the making of an order in circumstances such as exist in this case, the making of it or the refusal to make it may seem somewhat remote from the prevention and settlement of any industrial dispute. But the nexus exists in the system of registered organizations. That system was devised by the legislature to provide essential machinery for representation O£ opposing industrial parties and for communication between them. By s.2 of the Act the encouragement of the organization ef representative bodies of employers and employees and their registration under the Act, the democratic control of such bodies and the participation in their affairs by all members are among the chief objects of the Act. And clearly for the proper conduct of the affairs of such representative bodies efficiency and purity in their management is of the utmost importance. The notion behind the system is that by

identification and expression of the will of such bodies

through the activities of the members acting in compliance with the rules, in support of their objects, disputes may be

identified, subjected to conciliation or arbitration or

Clearly, however, it is fundamental to the whole of this that officers and members of an organization refrain from activity designed to denude the organization of its membership or to denude any branch of an organization of its membership. It is the privilege of any employee or group of employees who are dissatisfied with the organization to which they belong to leave it and endeavour to get others to do the same. But from every consideration of common sense, honesty, and regard for the basis of association in an organization, under the Act, conduct such as persuading members to resign and join some competing organization is incompatible with membership and the holding of office. -

It would appear that an order should be made where the Court decides as a matter of discretion that the circumstances are such that for the purpose of promoting the objects of the Act it would be beneficial to make the order. So fundamental is it that rules be obeyed that it is only in

rare cases that the Court refuses an Order. In cases where

ened het nA A ee a aL te ah eh at TE ee tolls eT a rien alta

the making of an order, would conflict with the encouragement of organizations of employees in a representative body there may be good reason for the Court to exercise its discretion

An order under s.141 directed to members or officers of an organization and requiring them to obey rules in some particular respect creates an obligation disobedience of which is a criminal offence. The five appellants who were charged as set forth above, were at the material times officials of the Sydney Branch of the organization, The trial Judge has found that over a considerable period there was a definite move by officials of the Sydney Branch of the Organization to separate the State Union away from the Branch. This inference he drew from a series of events incidental to dissatisfaction by the Sydney Branch with the policy of Federal Council that the organization should seek coverage of its members under agreements or awards under the Act rather than in State Industrial systems. From 1976 onwards Pederal Council policy was to seek coverage of the members of the organization throughout the Commonwealth, and including New South Wales, in awards or agreements under the umbrella of the Commonwealth Conciliation and Arbitration Commission. The Sydney Branch Committee of Management did what it could to resist the implementation of this policy. This resistance manifested itself in moves to build up the New South Wales Plumbers and

Gasfitters Employees' Union which was registered under the New

Kiimlinteventeahcrndra ites «bu tale ede al fate EE EO ee nti Ere ie Libis od

tr ota racstttni iia at Timadhestals tphila Gaby bibersticnalerhemesh tented dente moe aay!

South Wales Industrial Arbitration Act of 1912 as amended, through which State coverage under the New South Wales Act could be maintained and extended. In the course of implementing this policy action was taken not only to build up the New South Wales State Union but to do so to the detriment

The culmination of this process was the personal incursion into the area of the Newcastle Branch of the Organization by four of the appellants for the express purpose of canvassing members of that Branch to resign from the organization and join the New South Wales State Union and actually doing so. The learned trial Judge found that this

was done with the knowledge and approval of the appellant

It is unnecessary to set forth at length the overt acts from which the inference arose that the five charged appellants had adopted a plan to resist Federal Council policy and to do so to the extent of attempting to deprive the organization of members. The situation was that stated in findings by the learned trial judge, the validity of which

"I am strongly of the view that during 1977 and 1978 this tendency developed into a concerted plan by Sydney officials, particularly the five applicants who were charged, to promote the State Union at the expense of the Sydney Branch of the organization and to destroy or at least so weaken

the Newcastle Branch of the organization that it would not be a viable branch. Further, in my view, it was this concerted plan which led to what can only be described as a raid on the membership of the Newcastle Branch in early 1979, If such membership could be significantly reduced then it was only a matter of time before that Branch would not be viable.

I am satisfied that all five applicants were parties to the plan and that with the exception of Mr Bignell they all in fact visited the sites in Newcastle during the times set out in the charges and there and then did request members of the Newcastle Branch of the organization to resign and join the State Union. This opinion is not only based on the background history leaading up to the events that occurred early in 1979 in the Newcastle area but on the evidence of those -members who gave evidence that they were so requested to resign from the organization and to join the State Union by the particular Sydney . officials as alleged in the charges. The evidence of such witnesses is accepted. Each of those four applicants admitted being at the various sites during the times as claimed. Each of them has admitted that Mr. Bignell knew they were in Newcastle at that time. I have no doubt that Mr. Bignell knew the purpose of the visit of those four Sydney officials to the Newcastle area before they left Sydney and not only approved of their actions within that area but ordered and directed those officials to do what they did. There is no doubt that he knew of, and indeed was probably the author of, the roneod forms of resignation addressed to Mr. Masterson that had been prepared in the Sydney office of the organization and distributed to Newcastle members by the four Sydney officials who visited Newcastle during the relevant time. These forms read:

Lemna ea Meas A i Eau ab POW Sa on bare LAD EE th 7

aT aa Panel Lier ne al aioli a ameter a wade en ma OE

'Mr. R. Masterson, ¥ Secretary, Newcastle Branch, Plumbers & Gasfitters Employees' Union of Australia,

I hereby tender my resignation as a member of the Newcastle Branch of the Plumbers &

It is obvious in my view that the forms were prepared for the use of the four applicants on their visits to sites within the Newcastle Branch area to obtain as many Signatures as possible from members to resign from the organization. Further, I accept the evidence of the Newcastle members who have stated that they were informed by the Particular applicant who spoke to them at first, if they were working under a State Award they should be members of the State Union only and secondly, when questions were raised by those members whether it would be necessary to pay contributions both to the Federal organization and to the tate Union, that particular applicant would inform the member that tney should resign .-from the organization to avoid double payment of

• contributions."

Whatever reasons the appellants may have had for thinking that their resistance was justifiable, there could, of course, be no justification of any kind for members and officers of the organization actually to attempt to induce other members to resign from it. To try to reduce the membership of the organization whilst remaining members and officers thereof was conduct which could only be described as most reprehensible. Whether or not there was some express or -implied rule of the organization which forbade members to engage in such conduct, it conflicted with every implied

It was from this conduct that the charges against them arose. It was urged by Mr. Gray the conduct alleged in

the particulars of the charges laid against the five

appellants was conduct which, if made the subject of a separate successful charge pursuant to rr.13(1l)(a) oF 13(1)(c), would have justified the expulsion of those five

appellants. As a matter of substance it is apparent that the conduct particularised must be taken to have been proved. It was this conduct which constituted the gross misbehaviour of which they were found guilty and for which they were dismissed from office. It appears that the conduct in question did constitute a contravention of the provisions of r.13(1)(a). The conduct of the five appellants in the Newcastle Branch area contravened the provisions of 1.47 which state that the Operations of any Branch may not extend beyond the boundaries of the State or into the Newcastle Branch area without the consent of the Head office of the Union being first obtained. The conduct in question also constituted disobedience of a motion duly resolved in the affirmative at a meeting of Federal Council on 19 September 1977. That motion was that, "Officials of the Sydney Branch directed not to operate or organize in the Newcastle Branch area without the prior permission of Head Office in consultation with Newcastle Branch.". It does not appear however that the relevant meeting was an annual or general meeting of Federal Council. It is not shown therefore that the conduct in question

were charged were all found guilty of conduct which would have

Li at Fhakad SLAs" by LCA Oar Moe bl ent td toh a a Se bale een War wean nkint ald mene eon anand Ste saa Gar eA, ace! See ec etl le Ratt EOE oD Seti, sem, a OTE ed |

sustained a charge under r.13(1)(a) and thus have rendered them liable to expulsion. It may be said therefore that invalidity of the decision to expel the five appellants proceeded not from the failure to identify the relevant conduct and satisfy the Federal Executive of the guilt of the five appellants of conduct justifying expulsion, but from a procedural reason. The situation of the five appellants therefore is that they have been found guilty by the Federai Executive in a proceeding properly conducted of conduct which would have justified expulsion if it had been brought before

the Federal Executive on a charge under rr.13(1) and 13(6).

It is important that such conduct was calculated to destroy the confidence of members in the operations of the organization. In addition, the conduct found by the learned judge was calculated to undermine the New South Wales membership of the organization, the viability of at least the Newcastle Branch, and prejudice materially its competence as a representative registered body in the conduct of operations relevant to the prevention and settlement of industrial

_disputes as contemplated by the Conciliation and Arbitration Act 1904.

It is the necessary conclusion from the foregoing that the appellants remain members of the organization although they have ceased to be officers. They must therefore

have*the rights and be under the duties of members according

ei hte nm dle oe iam Rl Bohl mat NM Ue Narain inten They OT oe

to the rules. The same must be accorded them fully. That legal position having been established, there is no reason to think that the respondents will fail to act in accordance with it. In all the circumstances it would, in my opinion, not be compatible with the promotion of the objects of the Act that the respondents' duty to extend the rights and duties of membership to the appellants should be secured against them by the imposition of a sanction of a criminal nature. In the

circumstances the Court should not exercise its discretion to

As to the course which ought to be taken in the light of the findings published this day, and the observations of Sheppard J. appearing at the commencement of his reasons for judgment published this day, I would defer the making of formal orders disposing of the appeals before us and stand the matters over for a short time to enable counsel to give consideration to what the members of the Court have said. When the matters are again in the list consideration can be given as to whether there should be further argument on any

~matter and what orders (if any) should be then made-

J certity thet this and the Seceany preceding pages are a true cory «7 t Fecsous for Jucguasnt herein of Biv aun 2 lie, Justice Sri' LYful bs } t Assocists Dated: 2-7-2 ABT Bie Ob

ne ta Lenk enon rn ee ae ee en Cae ee ean ee etna ne te

BETWEEN: ROBERT ARTHUR COOK, ULICK COLIN BIGNELL, TIAROLD SHOOTER, KENNETH LEWIS TYLER, ROYCE LAWRENCE CUNMINS and GREGORY LAWREXCE WATERS

AND: G. CRAWFORD, G.L. SMITH, R. FALRWEATHER, R. HEVEY, T. BOURKE, R. MASTERSON and THE PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA

In these appeals I have had the advantage of reading in draft the reasons for judgment of beth Smithers J. and Sheppard J. which set out the curial history of the cases and the issues arising for consideration as well as the relevant facts and the provisions in the rules of the Plumbers and Gasfitters Employees' Union of Australia (the Union). Because of the very

full consideration by them of those issues it 1S NOc necessary

for me co set them out in any detail. I am content to simpiy express my agreement in respect of most of the matters falling

1 agree with the reasons for Judgment of Sheppard J. that x. 28(5), in the form in which it existed in 1976, did not confer upon the federal council the power to amend the rules so as to give the federal executive the power te dismiss from office. I also agree with his reasons for deciding that the annual general meeting of the South Australian Branch, held' on 1S June, 1977, was not "the meeting of his Branch specially convened for the purpose" of having submitted to it a member's "proposal to amend the Rules" as required by r. 28(2) of the rules. In this connexion it may be added that the Bulletin containing the notice of the annual general meeting did not state or imply that the meeting had been specially convened for the requisite purpose and the minutes of the meeting did not contain any statement that the meeting had been "specially

Rule 28 was considered by a Full Court of this Court jn Rocts v Mutton [1978] 32 F.L.R 15. As to the philosophy of Pacticipation by the members in the process of amending the rules, upon which the requirements of r. 28 were based, J.B.

Sweeney, Evatt and Deane JJ. said in that case (at p. 19) :-

"Quite apart from the above considerations, there is a more fundamental reass. for construing the procedural requirements contained in sub-cll. (2), (3) and (4) of xr. 28 as mandatory rather than directory. Undezlying these provisions is the obvious philosophy that, apart from the case where amendment is necessary te comply with legislative requirements, amendments to the rules of the union should have a basis in the membership itself. The initial promoter of an amendment to the rules 158 seen aS acting in his capacity as a member of tle union rather than as an officer or aS a member of the federal council sor of the committee of a branch of the union. The proposed amendment must, if it is to be submitted to the federal council, be approved by a majority of the members of the branch to which the relevant member belongs at a meeting specially convencd for the purpose of considering it. It cannot be dealt with by the federal council unless notice that it is proposed to consider it has been forwarded to all branches of the union not less than six weeks prior to the relevant meeting of the federal council. The requirement of notice to all branches iS clearly designed to ensure that, except where the proposed amendment is to meet legislative requirements, no amendment will be made to the rules of the union without the members of the union being, at branch level, given the opportunity of considering the propesed amendment and making their views known in relation to it. Since branches meet montnliy, six weeks' notice is designed to ensure that each branch will meet after it gets notice of

the proposed amendment and before the council meets."

In my opinion the facts in relation to the South Australian Branch annual general meeting did not comply with eather the spirit or the letter of the requirement of r. 28 and that meeting was not "specially convened for the purpose" within

I agree with Smithers J. that the September 1477 amendment, if it had been valid, would have been effective to

remove the cenditiens pravicusly applicahle to the rule

Making powers of the federal ceuncil - rejecting the appellants' argument to the contrary. I also agree that, having regard to the terms of s. 171B.(6), the Court should not accept the submission advanced by Mr. P.R.A. Gray, of counsel, on behalf of the respondents that the purported

As to the effect of s. 171F, I agree with Sheppard J. that the purported amendment to r. 28(5) was validated at the expiration of four years in September, 1981. In the Australian Industrial Court in Egan v Harradine [1975] 25 F.LL.R. 336 at p. 381, J.B. Sweeney and Evatt JJ. expressed concern at the possibility of injustice resulting from "the lequacity and stamina of counsel" if s. 171F. had such an effect. mr. J.R. Clarke, of Queen's Counsel, on belialf of the appellants agreed that that decision was not binding upon this Court. I consider that we should not follow that

decision because in my cpinion s. 171G. is a sufficient

I also agree with the reasons expressed by Sheppard J. for holding that the Western Australian branch meeting was not "specially convened fer the purpose" and that the

amendments based upon "Document R" were not validly madc.

The amendment to r. 28(5) plainly departed from the

previous "underjving ... philosopny tnat ... amendments

ene te ee a ad een ree ite Ae La a) She a ateaka aerated ae yah Le one lee TE etd ee ee re

Ce ane kah Male RR Re I oe wee Se ee hoe ~~ ae wee wee - o-

should have a basis in the membership itself" which the Fuil

Court in Roots v Mutten (in the passage quoted earlier)

regarded as "a more fundamental reason for construing the precedural requirements ... as mandatory ...". I agree with the reasons for judgment given by Sheppard J. for holding tnat the amendment to r. 28(5) infringed s. 140(1)(c) of the Act in that it imposed upon members conditions which, having regard to the objects of the Act and the purposes of the registration of organizations, are unreasonabie. I Gesire to add briefly my own views for not accepting certain of the arguments advanced in support of the submission that the amendment to xr. 28(5), conferring upon the federal

council an unfettered authority to make and amend rules, does

Firstly, considerable reliance was placed upon the provision for "a referendum of the members of the Union" under rx. 27 if the decision "is disagreed with by a majority of the members of any two Branches in any two States, present at a meeting of the respective Branches specially called for that purpose", Leaving te one side possible difficulties with the construction of that rule and the possibility of differing opinions (as have occurred in this appeal) as to whether a meeting has been "Specially called for that purpose", the possibility of having a referendum has

considerable disadvantages as a means of member participation

in the rule-making process. In Boland v Munro [1980] 37 A.L.R. 263 at p. 280 Evatt and Northrop JJ. adopted the

"Referenda are a cumbersome, time~consuming and very expensive operation for a union. As a matter of practice, and indeed T think by necessary implication, they would be conducted by secret postal ballot and they would involve the printing of cases for and against a particular proposal. This being so, the cost to a union is very great and the union is entitled to limit the right to a referendum to truly important questions."

That passage would provide the basis for a powerful argument by anyone opposing a motion directed towards having a question submitted to a referendum of the members. Reliance could be placed upon the words "cumbersome" and "time-consuming" and also upon the opinion that it is a "very

expensive operation for a union",1s required to"be conducted by secret postal ballot" and invelves "the printing of cases for and against a particular proposal". Disputes might arise aS to how to decide who should write the cases "for and against". Further, if the meetings "specially called" wished to "disagree with" (say) 10 out of 15 amendments to the rules then presumably there would have to be 10 referenda questions with the printing of cases for and against each question. In the meantime the decision of federal council "shall remain 1n

full force" although the amended rules would not have effect

TOY Len ere eerie = me a ne et - - = sae - oe we = - 5

Secondly, it is said that in certain circumstances a special meeting of the fedcral council shall be called under r., 24 to review the previous decision. Doubtless a decision open to a review by the same body is preferable to a decision which is irrevocable but it is only an appeal from Caesar to Caesar and in my opinion can hardly be said to go far towards "the full participation by members ... in the

Thirdly, the requirement under s. 139(4) that any amendments te rules made by the federal council muszc go to the Industrial Registrar for his certificate dves not in my opinion provide any answer to the argument that the ruie contravenes s. 140. That section would tend to meet an argument that the rule-making power might be misused. However, the question under consideration is not whether the power conferred may be misused but whether the conferring of the power itself imposes conditions upon members which, having regard to the objects of the Act and the purposes of

the registration of organizations, are unreasonable.

Fourthly, the fact that s. 140 would permit proceedings in this Court in respect of a rule that had been made by the federal council is, for similar reasons to those which I have just given, no answer to the question whether

the rule conferring the rule making power (as distinct from

rules made under that power) imposes conditions that are

unreasonable. In any event the members cf the Union may not be prepared to take court proceedings in respect of rule amendments carried without reference to the membership generally; it should not be assumed that such proceedings can

Fifthly, I agree that "much must be left to the judgment cf those who make the rules" but it must be remembered that this amendment to the rule was not passed in accordance with the earlier power to amend rules which had "a basis in the membership itself". The question remains for determination ~- does the rule impose conditions which are unreascnable in the sense used in s. 140. The Court has a duty to decide that question and must not be deterred from that task by the possibility that someone may wrongly believe that the Court is putting "inte effect its own opinions as to what is desirable in the way of union rules" - per O'Mara J.

in Thornton v_ McKay (1946) 56 C.A.R. 561 at 590. The Court's

"own opinion as to what is desirable in ... union rules" is of course quite irrelevant to questions of whether rules contravene s. 140 just as the opinion of the High Court as to what is desicaple in Federal legislation is guite irrelevant to questions cf whether the legislation is within

regulations contain a provision expressly stating that the

rule making power must be exercised in accordance with prescribed conditions. However, in my view the respondents' submissions gain no more assistance from that fact than the appellants' submissions gain from the fact that they also contain no provision stating that the grant of an unfettered rule making power to a federal council is permissible. The legislation, instead of making either of those specific provisions, requires that the rule conferring the power to amend rules - like all other registered rules - "shall not impose upon ... members conditions which ... are unreasonable eee For the reascns given, including those expressed by Sheppard J.,I consider that r. 28(5) does impose conditions which are unreasonable having regard te the objects of the Act and the purposes of the registration of organizations and

I also agree with what Sheppard J. has written as to the consequences of the contravention of s. 140 and with his opinion that the federal executive had no power to dismiss from office or to expel the appellants other than Mr.

I agree with the reasons given by Smithers J. for deciding that the learned trial judge erred in rejecting, on the question of "imbalance", the evidence of the appellant Bignell, which was not challenged in cross-examination and

was uncontradicted. I do not find it necessary to express an

opinion as to whether, notwithstanding the "imbalanve" shown to exist, r. 21 should not be held to conflict with ss. 140(1)(a) or 140(1)(c} of the Act. In considering those questions it would be necessary to consider the nature of the Union, its histery and the provisions of the rules including r. 24 which providesfor a "Special Meeting of the Council to

review any previous decision" and r. 27 which permits a referendum of the members of the Union, As to those two rules I have already, 1n considering the power to amend

rules, expressed views as to certain weaknesses and possible

I agree with the reasons for judgment of Smithers J. in dealing with the question of "the charges" (assuming the validity of rr. 13(6) and 35(10)) and "the sanctions"

Mr. Gray submitted that the five appellants, by reason of their conduct, had all ceased to be members of the Union before the proceedings commenced and accor@ingly they could not obtain relief under s. 141 nor could Mr.Cook succeed in obtaining the orders he sought in respect of them. In his submission each of the five appellants by his conduct had repudiated his contract. This repudiation was said to have occurred either by "a fundamental breach ... (that) goes to the root of the contract to the extent that it destroys

it™ or by an unequivoca] act evincing an intention by them to

be no longer bound. It was submitted that the repudiation entitlcd "the other party" toa accept that repudiation and that it had been accepted. A closely allied submission was that the tive appellants had impliedly resigned their membership of the Union. In this connexion it was also submitted that the offices held by the five appellants in the

Union registered under the (Clth.} Act were incompatible with

the offices they held in the Union registered under the

N.S.W. Act and that that situation constituted a resignation

by the appellants from the offices held in the Federal Union

which resignations did not require acceptance by the Union.

appellants' counsel to "represent novel approaches to the

"far-reaching propositions" advanced by counsel in John v

Rees and others [1970] 1 Ch. 345. In that case Megarry J.,

of the local Labour Party. They had, he said, destroyed their own membership either by stating that they would not give the undertaking, or by

failing to reply to the letter within a reasonable time. It might be, he added, that they ceased to be members when they inwardly harboured disloyal notions to their bosoms, a cencept which seems to me to give rise to many interesting speculations. He also contended that by their acts they-had resigned theic membership ...by their unconstitutional action and demonstration of disloyalty they had repudiated their membership. It might even be, he said, that a deliberate breach of any rule would bring about an ipso facto determination of theic membership".

His Lordship later {at pn. 397-8) found it unnecessary to decide a further "interesting submission" that :-

... if there were a doctrine of ipso facto determination, every member of the Covernment and the Labour Party would have ceased to be members of that party, and all its assets would pass to the Crown as bona vacantia."

As to Mr. Gray's first submission I am not preparcd to hold that such repudiation, if it occurred, was accepted. The decision of the Federal Executive of 2 May, 1979 could not in my opinion amount to such an acceptance because that decision necessarily proceeded on the basis that on 2 May, 1879 the appellants were membei1s and officers of the Union. In his written reply Mr. Gray relied also upon the matters set out in paragraphs 10 and 11 of che Points of Defence as constituting a sufficient acceptance of the appeliants' repudiation. Those matters, however, must be read in their context, namely, aS part of a document in wnich the respondents had contended in preceding paragraphs, amongst other things that :-

1. On 2 May, 1979 the Federal Executive had pewer under the rules "to expel from membership and dismiss from office" the appellants.

2. The Federal Executive had power "to dismiss officers

3. The Federal Executive dismissed the appeliants from office and expelled them from membership under certain general and inherent powers.

4. Any rules containing the power te dismiss from office or expel from membership did not contravene s. 140 and contained "express Rules ... with which a member or officer is obliged t9 comply and, in default ... is liable to expulsion."

8. The appellants were found guilty of charges and "dismissed from office and expelled from membership."

S. (g) & (h) The Federal Executive had hbefere it evidence establishing gross misbehaviour and/or gross neglect of duty "such as justified dismissal from office

In my opinion the contention of the respondents tnat the Matters in paragraphs 10 and 11 of their Points of Defence constituted an acceptance of the alleged repudiation by the appellants cannot be upheld when those matters are cead in the context of the contentions .in the preceding numbeced paragraphs, to some of which I have referred. As those

paragraphs demonstrate, the respondents did not purport to

accept any repudiation but, on the contrary, applied the terms of the contract by purporting to use the procedures for the termination of the contract provided by the contract

itself. Accordingly the argument based upon acceptance of

Ieee sere ee ne cee pee ee te ee ee me eee ~ «7 we e wee - - oe

14, repudiation fails. I should add, however, that in any event I am not satisfied that the appellants' conduct constituted

The argument that the appellants had impliedly resigned involves a consideration of whether there may be properly amplied into the contract of membership a term permitting a member to impliedly resign. The principles upen which courts will imply a term into a centract have been

summarized by the Privy Council in B.P. Refinery Pty. Ltd. v

Hastings Shire Council [1978] 52 A.L.J.R. 20 at p. 26 as

"Tneir Lordships do not think it necessary to review exhaustively the authorities on the implication of a term in a contract which the parties have not thought fit to express. In their view, for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) ait must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract,"

The submission in support of an implied term permitting the resignation by a member falls faz short of the requirements there enunciated, The propesed implied term must not contradict any express term of the contract and here r. 19 expressly provides a method of resignation. The tMnion is

115(1)(d)(vaii) to have a provision in its registered rules on that subject matter. Rule 19 provides that a "member shall not discontinue his membership without giving at least three (3) months! previous written notice to the ... Secretary of his intention so to do;". In my opinion the rule provides an exhaustive statement of the terms and conditions governing resignation. It follows that any implicd term would contradict the express term of the

In addition, having regard to the terms of r. 19, the submission fails to satisfy the test that the rule sought to be implied "must be necessary to give business efficacy to the contract". Further such an implied term plainly is not

The respondents sought to rely upon In Re Sick and Funcral Society [1973] 1 Ch. 5). However, the judgment of Megarry J. (at p. 62) made it clear that it was a very different case from the present appeal. Firstly, there a member had the "unilateral right, not dependent upon acceptance by the society, to resign his membership at any time, even though the rules centain no provision as to resignaticn." That position may be contrasted with the present case where r. 19 of the Union's rules contained a

detailed provision as to the manner in which a member might

resign his membership. That ruJe must be read in the light of s. 145 of the Act but it shows that the rules contemplated

a very different situation from that before Megarry J.

Secondly, Megarry J. may have been influenced by his view that there are "many instances of clubs up and down the country" in which members have failed to discharge their obligations as members for years, including the vpligation to pay dues. His Lordship dealt with two possibilities, saying

"Yet if the contentions on behalf of the four members are right, either the society or the members concerned may, if it suits them, claim that the membership is still in being. Such members might fand that the society is claiming many years' arreacs of a substantial subscription, or the members might, as here, suddenly reassert their membership when some advantage turns up. I do not think that this can be right."

The possibility of a society "claiming many years' arrears of a substantial subscription" may be contrasted with the present case in which the Union, as a registered organization under the Act, has a statutory right to sue for dues "owing for any period of membership ... " (s. 148). In my opinion

the judgment does not support the respondents' submissions.

The doctrine of incompatibility of offices, upon which the respondents' also relied, depends upon an

incompatibility stemming from the holding of the offices

Tt nn reer item ee er tee se ener ee rete ee wrote tee es

themselves - as distinct from an incompatibility stemming from the manner of performance of those duties. On the facts relied upon in support of this submission I am not satisfied that there waS any incompatibility in the offices. Accordingly the respondents' submission based upon that

T come finally to the questions of whether the Court has a discretion and, if so, how should it be exercised. In my opinion the Court's jurisdiction under s. 141 is discretionary. I consider that it is too late for anyone t@ argue in this Court that the Court did not have a discretion before the 1977 amendments to the Act. The existence of the discretion was recognized by Dixon J. in Ex parte Barrett (1945) 70 C.L.R. 141 and was expressly accepted in R. v Spicer (1958) 100 C.L.R. 163 by Dixon C.J.,

McTiernan, Williams, Webb, Fullagar and Taylor JJ. who said

"In the second place the Commonwealth Industrial Court is not bound under s. 141 to exercise its

jurisdiction. It is a jurisdiction which is conferred in permissive terms and the Court has a discretion."

Further the Australian Industrial Court has exercised the

discretion by refusing to make the orders sought by a

Claimant e.g. McKay v Williams (1973) 22 F.L.R. 1 at p. 14.

ie. In my opinion the words used in s. 18 of Act 108 of 1977 did

not show an intention to take away tnat discretionary power.

It is necessary therefore to consider the submission by Mr. Gray, on behalf of the respondents, that in this appeal the discretion should be exercised by refusing the relief sought. Having regard to the conclusions of Smithers J. and Sheppard J. on this submission I state my Opinion with some diffidence. Considerations which appear

the more weighty to them appear the less weighty to me and

vice versa. The Court must exercise its discretion in accordance with the purposes of the Act. In Magner v Fowler

and others [1979) 26 A.L.R. 671 at pp. 703-6, I expressed my

opiniscn as to the principles applicable to the exercise of the Court's discretion, following the principle enunciated in

Wilson v_ Heydon (1944) 53 C.A.R. 482 by Kelly J. who said (at

"In my Opinion, Parliament intended that the power it reposed in the court should be exercised to check such action, or to put an end to unauthorized inaction, in all cases where the action or inaction, as the case may be; amounts to a substantial failure to perform or observe the rules of the registered body. Provided the failure be of a _ substantial nature, it is in other werds the duty of the court £0 cxercise the discretionary power conferred upon the section in order to correct it."

That principle was applied in Milier v Building Workers

Industrial Union of Australia (1947) 59 C.A.R. 836 at p. 843

There apeear to have been very few cases dealing with the principles upon which the Court should exercise its discretion under s, 141 - possibly because of the ielative infrequency of the occasions upon whitch respondents have asked the Court, (oc the Courts previously exercising this jurisdiction), to exercise the discretion against an applicent. However, some assistance may be gained from

Bowling v General Motors Holdens Ltd, [1980] 33 A.L.R. 297,

where J.B. Sweeney, Evatt and Northrop JJ. enunciated the principles applicable to the exercise of the Court's 1 discretionary power under s. 5(5) of the Act to order that an "employee be reinstated in his 91d position". The Full Court

' "It is essential that an employer convicted of an ' offence against <he section should not benefit from

that offence by ridding itself of an employee by ; reason of any onc or more of the circumstances specified."

Although the Court was there dealing with the exercise of the Court's discretion to make an order against an employer who ' had been convicred of an offence against s. 5 of the Act, in my opinion the discretion under s. 141 should be exercised in accordance with similar principles in ocdezr to ensure that respondents to s. 141 proceedings, who are shown to have

dismissed from office or expelled from membership a membec cf

an organization in breach of che rules, should not benefit from that decision by ridding themselves of an officer or

There will be times - probably rarely ~- where the Court's discretion should be exercised against an applicant e.g. where he has been guilty of undue and unreasonable delay in bringing the proceedings. I agree with Smithers J. that so fundamental is it that rules be obeyed that it is only in rare cases that the Court refuses an order (cf. Starke J. in

Ex parte Barrett (Supra) at p. 160). I also agree with him

that there is good reason for the Court to exercise its discretion not to make an order where such an order would conflict with the encouragement of the organization of employees in a cepresentative body but I do not consider that

orders in relation to these appellants would do so.

Mr. Gray, in submitting that the Court should exercise its discretion against the appellants, placed considerable reliance upon the findings of the learned trial judge as to the conduct of the presenc appellants, most of which conduct occurred before 2 May, 1979 - the date of the findings of guilt made by the federal executive. His Honour

"Tam strongly of the view that ducing 1977 and 1978 this tendency developed inte a concerted plan by Sydney ortictals, particularly the five applicants who were charged, £6 orcmote the State Union at the

expense of the Sydney Branch of the organization and to destroy or at the least so weaken the Newcastle Branch of the organization that it would not be a viable branch. Further, in my view, it was this concerted plan which led to what can only be described as a raid on the membership of the Newcastle Branch in early 1979. If such membership could be significantly reduced then it was only a

Matter of time before that Branch would not be viable."

JT am not prepared te infer from his Honour's findings that this appeal is being prosecuted in order that the appellants May continue to carry on the conduct found by his Honour to have occurred. Mr. Gray has submitted that it has not been shown on behalf of the appellants "that any change of their ways in that cespect is likely" but much time has elapsed and the appeljants have had ample opportunity to study ~ and to reflect upon ~- the findings of fact of the learned trial judge. After the delivery of judgment in this appeal the appellants will have an opportunity to read the reasons for judgment of the members cf this Court. In those circumstances I do not assume that the conduct found by his

I do not consider that, if the appeals are allcowed and orders made, the respondents would be bound to allow the appellants to continue upon a course of action designed to destroy a branch of the Union - assuming tnat such conduct resumed or continued. Mr. Crawford, a respondent in Matter N.S.W. 19 of 1979, sought orders under s. 141 of the Act

giving directions for the per forinance and observance of the

rules of the Union (Matter V. 23 of 1979). During the hearing of this appeal, members of the Branch raised with Mr. Gray the possibility of proceedings in this Court under 6s. 141 of the Act seeking orders dicecting the appellants to perform and observe the rules. Notwithstanding Mr. Gray's answer, which referred to passible reluctance to enforce orders, I am not prepared to assume that the respondents would stand idly by, or refuse to institute proceedings in this Court, if the appellants obtained orders from this Court under s. 141 and then themselves acted in breach of the rules of the Union. If it be thought that thera may be difficulties in the efficacy of such proceedings by reason of the time which might be taken in litigating the matter, then

it should be borne in mind that s. 141(2)} provides that :-

"At any time after proceedings under this section have been instituted ... the Court may make such interim orders as it thinks fit in relation to the Matters to which the proceedings relate."

If the orders sought by the present appellants are made and the respondents fail to take action in respect of any similar conduct in the future by these appellants in breach of the rules, then the resumption oc continuance of such conduct in breach of the rules will stem from that failure to institute

For the reasons given I do not accept the submissions put by Mr. Gray as to wny the Court should exercise its discretion against the appellants. I agree that Orders should not be made at this stage and the matters should be stood over to enable the parties to consider the

reasens for judgment of this Court and +0 make such

Submissions as they think fit when the matter is re-listed,

Ae eta rece Rad meres ae en ee ee Ua re to a 4 f

• 4 . Xo cmdsy that this end the Me Fuwcahy hoe : i procediny pages are a OVS copy or the i & Reasons for hudgn ment beran of the j | Vonossable Mr. Jushse "y at f t " 4 'f eps h d at 1 { Dated: 7y 4 N48 a b Se womecut IME VEST ae ace). on PNT TS =

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. 6 of 1981 INDUSTRIAL DIVISION

IN THE MATTER of the Conciliation and Arbitration Act 1904, as anended

ROBERT ARTHUR COOK, ULICK COLIN BIGNELL, HAROLD SHOOTER, KENNETH LEWIS TYLER, ROYCE LAWRENCE CUMMINS and GREGORY LAWRENCE WATc&RS

G, CRAWFORD, G. L. SMITH, R. FAIRWEATHET R. HEVEY, T. BOURKE, R. MASTERSON and THE PLUMBERS AND GASFITTERS EMPLOYEES! UNION UF AUSTRALIA

These are appeals from a judgment of a single judge of this Court (Evatt J.) in two matters (No. N 19 of 1979 and No. V 23 of 1979). In the first of these matters:.his Honour dismissed an application brought by the appellants pursuant to the provisions of s.141 of the Conciliation and Arbitration Act 1904 ("the Act"), The rule nisi had calied upon the respondents to show cause why orders should not be made that the respondents perform and observe the rules of tne Plumbers and Gasfitters Employees' Union

of Australia ("the organisation") by treating as null and void

resolutions of the federal executive of the organisation said to have been made on or about 1 May, 1979, purporting to expel the appellants, other than Robert Arthur Cook, from membersnip of the organisation and to dismiss those appellants from offices held by them in the organisation. The rule nisi had also called upon the respondents to show cause why orders should not be made that the respondents perform amd observe the rules of the organisation by recognis- ing that the appellants other than Robert Arthur Cook were officers of the organisation, Certain other relief was claimed. It 1s unnecessary to refer to the detail of this. Until the resolutions referred to in the rule nisi,the appellants,other than Robert Arthur Cook, held various offices in the organisation. Mr. Bignell was the secretary of the Sydney branch, Mr. Shooter the Assistant Secretary thereof and Messrs. Cummins, Tyler and Waters were organisers, Mr, Cook, who originally was the only applicant, has at all material times been a member of the organisation. His membership thereof is not 1n question in these proceedings. The respondents are members of the federal executive of the organisation and the organisation itself. The organis- ation was not originally joined as a respondent to the

In the second matter Mr. Crawford was granted a rule nisi pursuant to s,141 of the Act calling upon a number of respondents including Robert Arthur Cook to show cause why certain orders should not be made giving directions to those respondents to perform and observe the rules of the organisation by acting in a number of specified ways in relation to the affairs of the Sydney branch of the organisation.

In the way that the argument proceeded there was an underlying assumption that 1f the appeal in N 19 of 1979 succeeded, it being the principal of the two applications, it would follow automatically that the appeal in V 23 of 1979 should be allowed and the application dismissed. Likewise if the appeal in the first matter were to fail, his Honour's orders in the second matter would stand. For that reason no really separate consideration to the appeal 1n V 23 of 1979 was given. But the view that the outcome of the appeal in N 19 will necessarily involve the disposal

in a particular way of the appeal in No. V 23 may not

A further matter mentioned to us, but not before us, is matter No. V 24 of 1979. That is an application under s.171C of the Act seeking, inter al1a, the validation of any of the rules and resolutions found invalid in the prin- cipal proceedings, matter No. N 19 of 1979. A number of other acts and decisions are also involved in the application which was nade by a number of applicants including the organisation. The application was not dealt with by his Honour who stood it over generally. There was discussion auring the argument before us as to whether it ought not be referred to this Court. But that course was opposed by counsel for the respondents and was not pursued,

A further application No. N 28 of 1979, 1s an applie- ation made by applicants including the organisation pursuant to s.150 of the Act. It too has been stood over generally.

Because of unresolved questions arising in relation to No. V 23 of 1979 and other considerations which arise by reason of the applications made pursuant to ss.171C and 150 of the Act, I am in agreement with a course proposed in argu- ment that we publish reasons for our decision on the matters which were argued, but do not for the moment make formal orders disposing of the appeals. Instead the matters should be stood over for a short time to enable counsel to consider what we have said. When the matters are again in the list the question of whether there should be further argument on

any matter and whet orders, if any, should then be made can

The organisation is registered as an organisation of employees pursuant to the provisions of s.132 of the Act. It has been registered as such an organisation since October 1911. It has a number of brancnes; there is one branch in each State with the exceptions of New South Wales, which has a Sydney branch and a Newcastle branch, and Victoria which, since 1978, has had a Melbourne and a Geelong branch, The Australian Capital Territory 1s included within the area of the Sydney branch. The area of the Newcastle branch extends over a substantial area of the north and north western parts of New South Wales. The branches each enjoy, within their respective areas, a substantial degree of autonomy. But the supreme control of the organisation 1s exercised on behalf of the members (in which it is said to be vested) by the Federal Council which is to consist of two representatives (a vice president and a councillor) from each State, except New South Wales (which consists of three representatives, two (one a vice president) from the Sydney branch and one (also a vice president) from the Newcastle branch) and Victoria which has one vice president and two councillors elected conjointly by the Melbourne and Geelong branches. Amendments made to the rules in August 1978 wnich, amongst other things, created a separate branch in Geelong may be of questionable validity, but that is

net a matter which arises for determination in this appeal.

The rules to which I have referred have from time to time undergone some renumbering. The provisions were formerly in Rule 22 and are now in Rule 2l.

It 1s convenient to say at this point that the proceedings involve substantial challenges to a number of the rules of the organisation. It has been necessary for us to look at its rules as they have been from time to time since November 1976. Three editions of the rules have been beZore us. These are dated respectively 15 November, 1976, 16 March, 1978, end 10 August, 1978.

The later editions incorporated amendments purporting to have been made in 1977 and 1978, some of which are, as I have said, under challenge. The renumbering of the rules which has occurred makes it difficult to refer easily to particular rules and to particular amendments thereof.

A number of specific powers are conferred on the Federal Council. In 1976 Rule 22.6 empowered the council, unter alia, to appoint the executive (thereinafter referred to) to hear and decide any appeal from any branch or member thereof, to empower the executive and/or the general secretary -

"to take appropriate action including the dismissal

from office of any member or members elected to any office of the Union who has been found guilty witnin the Union structure of misappropriation of the Union funds or a substantial breach of tne rules of the

Union or gross misbehaviour or gross neglect of duty and to repeal, alter or add to the rules of the organisation,

No doubt the provisions relating to the dismissal from office

of a member were drawn in order to comply with the provisions of s.133(1)(f£) of the Act. I refer also to Rule 20A.

Tne executive of the council is provided for in Rule 36 (now Rule 37). The executive consists of the president of the council, the vice president for each State other than New South Wales and the vice presidents of the Sydney and Newcastle branches. In the form in which the rules were in 1976 the executive was empowered to suspend from office or impose a fine not exceeding $50 on any member of the union if it were satisfied that the member had been guilty of misconduct of the kind specified in a number of sub-paragrevhs of suv-rule 12(a). Later amendments of these provisions purported to confer on tne executive more extensive powers than it previously had. To the detail of those provisions I shall later refer.

The substantial question which falls for deternination 1s wheth:r the purported action of the executive in dismiss- ing from office and expelling from membership the appellants other than Mr. Cook was valid and effective. In broad terms the attack which is made by the appellants upon the validity of the executive's actions is based upon alleged invalidity of rules which purported to confer power upon the executive to do what it did and, if thet submission fails, reliance

upon submissions that the executive did not act lawfully