Purvinas v Wyse - [2024] FCA 1122 - FCA 2024 case summary — Zoe

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Purvinas v Wyse

[2024] FCA 1122

Federal Court of Australia|2024-09-25|Before: Raper J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2024-09-25

Before

Raper J

Source

Original judgment source is linked above.

Judgment (20 paragraphs)

[1]

THE COURT ORDERS THAT:

Pursuant to s 329(1) of the Fair Work (Registered Organisations) Act 2009 (Cth), the applicant be ordered to pay the respondents' costs on an indemnity basis, to be assessed on a lump sum basis in an amount to be determined by a Registrar of the Court.
The Registrar be directed pursuant to r 1.37 of the Federal Court Rules 2011 (Cth), to determine the quantum of the lump sum for costs payable pursuant to order 1 above, in such manner as he or she deems fit, including, if thought appropriate, on the papers.
The Registrar be directed pursuant to r 1.37 of the Rules, at the conclusion of the quantification process, to order that the applicant is to pay whatever sum has been quantified pursuant to order 2 above within 28 days from the date of the Registrar's order. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT RAPER J:
The issue for determination is whether certain of the Federal Executive members of the Australian Licenced Aircraft Engineers Association (ALAEA or the Union) are entitled to their costs, on the basis that Mr Purvinas instituted proceedings vexatiously against them (which he has now discontinued) within the meaning of s 329(1) of the Fair Work (Registered Organisations) Act 2009 (Cth). Mr Purvinas is a member, employee, and the Federal Secretary of the Union.
The ALAEA is an employee association and an organisation, with approximately 2,000 members, registered under the RO Act, which is entitled to represent persons employed in connection with the employment of licenced maintenance engineers in the aircraft industry.
Mr Purvinas was first elected by the Union's members to occupy the office of Federal Secretary in 2006, and he has retained that office as the result of four subsequent elections. The evidence revealed that, since November 2023, there has been escalating antagonism as between Mr Purvinas and the Union's Federal Executive. The majority of the Federal Executive formed the view it had lost control of its Federal Secretary and that Mr Purvinas' institution of the proceeding formed part of a continued pattern of conduct by him to wield power over, and act without the direction of, the Federal Executive.

[2]

Mr Purvinas' evidence

Mr Purvinas filed three affidavits in these proceedings, the first, second, and third were affirmed on 26 February 2024, 2 July 2024 and 26 July 2024 respectively. Mr Purvinas' third affidavit specifically concerns the current application. Mr Purvinas also relied upon the affidavit of Mr Stephen Re (the sixth respondent), affirmed 2 July 2024, who supported Mr Purvinas' substantive application. Mr Re was not required for cross-examination.
It was my impression that Mr Purvinas saw himself very much as the embodiment of the Union and did not respect a significant number of the members of the Federal Executive (with whom he no longer enjoyed their support). Mr Purvinas appeared to attend to his position of Federal Secretary in a prescriptive and pedantic manner and appeared to be even more emboldened by his very recent attainment of legal qualifications.
When questioned in the witness box, he was quick to say he could not recall something, or to ask to be shown a document about matters which must necessarily have been in his knowledge. An example being as to what he was doing on 19 February 2024. This was the day after he claimed to have been made aware of the proposed disputed resolution and his orchestration of a plan (with staff) as to what would be done if the resolution was passed.
His evidence as to justification for his removal of the express and implied delegations he had was particularly telling. It revealed his preparedness to create unnecessary structural obstacles to thwart the Union's capacity to function at all.
Rule 27 stipulated that the Federal Secretary was required, inter alia, subject to the direction of the Federal Executive, to facilitate and attend its meetings, submit to it the financial statements received from the auditors, report the activities and financial position of the Union since the last meeting, and deliver up to the Federal Executive, all books, papers or other property belonging to the Union if called upon to do so.
Ultimately, I did not find him a credible witness and I was only prepared to find in his favour where the contemporaneous documents (not of his own making) accorded with his account. For the reasons expressed below, it will become apparent that he was a warrior that flexed his muscle in many Machiavellian ways, including by nib of the pen or keyboard.

[4]

Summary of competing positions

According to the costs applicants, the Court should be satisfied that Mr Purvinas has brought the suit in order to harass, annoy or embarrass them or otherwise to obtain a collateral advantage. This is said to be evident by reference to three distinct temporal periods: First, Mr Purvinas made prior threats of bringing the proceedings for collateral purposes and had made certain admissions to Mr Wyse and Mr Gill prior to instituting the proceedings. Secondly, the period just prior to and after the proposed motion was circulated and the commencement of the proceedings. Thirdly, the subsequent conduct of Mr Purvinas. This provides a useful frame of reference to consider the evidence, which will be attended to below.
Mr Purvinas submits that the relevant test for determining whether he may be liable for costs is whether his predominant purpose for instituting the proceedings was to harass or intimidate or otherwise to obtain a collateral advantage. Mr Purvinas submits that the costs applicants have not cleared that high bar; no collateral advantage has been established by the respondents. This was said to be the case because Mr Purvinas purported to have "had a very deep concern about the way that his role as the Federal Secretary was to operate in the event that this disputed resolution was to stand and which he took issue with". Mr Purvinas submitted that this concern was borne out by the relief sought in the application. The powers vested in the Federal Secretary, by virtue of r 27, were said to be impermissibly interfered with by the disputed resolution, which it is said was an ambiguous direction; referring to the evidence of Mr Wyse who said that Mr Purvinas could undertake calls as long as he told them later.
Mr Purvinas submitted that, even if the Court found that the communication as sent out on 23 February is somewhat misconceived, it does not detract from the application that was filed in this matter. Mr Purvinas says that the notion that Mr Purvinas has engineered the dispute to bring the Union to grinding halt, ought be rejected. Mr Purvinas' conduct in this regard post-dated the proposed motion.
Mr Purvinas also made an argument about the "level of dominance of the ranking for the reasons for which a proceeding might be brought". He suggested that there is a possibility the Court may find a "percentage" as between a vexatious and a bona fide motivation. To this end, should the Court find that there is a "low percentage" vexatious motivation, it should not find that his predominate purpose was vexatious. Mr Purvinas contends that the Court should be careful to distinguish between improper and proper personal interest. Mr Purvinas says that his motivation in the present case is of the latter kind; he has been the Federal Secretary for 17 years and is keen to protect the interests of Union members; it is not an ulterior personal interest to square something away to get even.
In response to the costs applicants' argument as to what Mr Purvinas should, or should not have done, it was said that there was animosity between Mr Purvinas and Mr Wyse. Mr Wyse had suggested back in November last year he should resign his post. There has been ongoing disputation. Ultimately, when the executives said they did not have confidence in him and they wanted to put in a large level of supervision and oversight, Mr Purvinas was entitled to test that, and that is what these proceedings are about, and that was his motivation in bringing these proceedings.
Mr Purvinas made submissions regarding the circumstances proximate to his discontinuing of the proceedings. It was submitted that those events all occurred in a short period of time. Further, once the disputed resolution was properly rescinded, and the charges laid by Mr Baldacchino were withdrawn, Mr Purvinas then promptly offered to withdraw the proceeding with no order as to costs, and upon that being rejected, the matter was brought before the Court as quickly as practicable.

[6]

Mr Purvinas' prior history of threatening proceedings and bringing of proceedings

A consideration of this pre-history provides a relevant backdrop to the identification of what Mr Purvinas' true motivation was, when he instituted the proceedings on 26 February 2024.
The costs applicants rely on a number of events prior to the instituting of the current proceeding as being illustrative of Mr Purvinas' propensity to use the threat of, or fact of his instituting of proceedings for collateral or vexatious purposes: First, his contesting of validity of the Federal Executive's motion regarding the creation of a Qantas Super Merger Committee in November 2023; secondly, conversations he had with Mr Gill and Mr Wyse and thirdly, his instituting of the bullying proceedings in December 2023 and, in particular, a conversation he had with Mr Stratton, on 29 November 2023.
On or around 13 November 2023, the Federal Executive established an Executive Committee to represent the Union to promote and further the interests of its members in the proposed Qantas Super Merger. On that date, Mr Purvinas wrote to Mr Wyse threatening to bring urgent Federal Court action for interlocutory relief regarding that motion on the basis that he said it was unlawful, saying that "he only had the power under the Rules to "represent" the Union, unless he delegated that power to someone. The 13 November 2023 letter is extracted in full (because of its significance first to this allegation, but also how it contrasts with Mr Purvinas' later conduct, about which I will return): Dear Rod, On 13 November 2023, a majority of the ALAEA Federal Executive passed a motion in the following terms: Approval is given for an Executive Committee made up of Executive Members Rod Wyse, Steve Purvinas, Mark Gant, Matt Rea and Eddy Azzopardi to represent the Association to promote and further the interest of our members in all Matters related to the Proposed Qantas Super Merger. Authority is also given for Rod Wyse to Head and Lead the Committee. I have previously expressed my concerns about the validity of this motion. As you are aware, although the Executive is the supreme governing body of the Union and can direct the Association's policy in matters affecting members per r.12, it does not itself have the power to represent the Association, including in negotiations. That power is vested specifically, and solely, in the Federal Secretary: r.27(n). To the extent that the motion purports to delegate a power that the Executive does not have, it is invalid. Actions taken pursuant to it will not be authorised by the rules; any action of the Committee as a whole (or any individual purporting to act on its behalf) will be outside power. The motion also has other deficiencies, including that it is not at all apparent what is meant by 'head and lead' and what powers have been purportedly vested in you. The upcoming proposal to sell Qantas Super is a matter of great significance to Association members. I am greatly concerned that if decisions are taken, and representations made to Qantas or other parties, in line with this motion that they will not have been made in accordance with the rules of the Association. I do not have concerns with the issue being dealt with by an executive committee per se, but it needs to be correctly constituted. This is too serious a matter to risk acting outside of power. Additionally, I consider it my duty as a federal office holder to ensure that the Association is acting consistently with its rules and underlying statutory obligations.
Legal advice was obtained which said it was within the Federal Executive's power and Mr Purvinas disagreed.
Mr Purvinas put on no evidence nor made any submissions justifying the position he took that the Federal Executive did not itself have the power to represent the Union and that power rested solely in his position. No such crystalline position could be taken from reading r 27(n) nor the Rule as a whole nor indeed when one considers other parts of the Rules, for example, r 12(15) which gives the Federal Executive the power to appoint and/or elect members to act as representatives of the Association.
It was Mr Wyse's evidence that during the November 2023 Federal Executive meeting Mr Purvinas said: It is not in fact that I think your motion is illegal but rather I do not want Rod [Mr Wyse] representing the committee.
Mr Wyse's evidence was not the challenged under cross-examination. In cross-examination, Mr Purvinas disputed saying this, but said he always maintained that a resolution to transfer his authority to another person was invalid and that he had concerns about Mr Wyse being the lead on discussions.
A review of the contemporaneous email communications regarding the draft motion, as well as Mr Purvinas' personal notes of the Federal Executive meetings on 21 and 22 November 2023, reveal that, by the time of the meeting, the motion had been reframed, and what Mr Purvinas had described as being the source of the invalidity had been removed. In addition, I note in Mr Purvinas' personal note, he stated: I explained the latest turn of events focused on Qantas Super and the Executives (sic) Intention to force me to delegate responsibility to Mr Wyse. I explained that the decision to delegate authority should be mine to make because I am accountable for what that person does. Mr Baldacchino asked my (sic) if my problem was delegating a task (Qantas Super) to Mr Wyse. I agreed that was the heart of the problem. I said I did not want Mr Wyse undertaking things I am responsible for because there were many instances of him making mistakes. …
Mr Purvinas tendered these notes as part of his evidence. Given that he stated that the "heart of the problem" was Mr Wyse, not invalidity, I find that he did say what Mr Wyse recalls.
On 22 November 2023, there was a Federal Executive Meeting, which Mr Purvinas described as an "attempt to overcome internal tensions"; there was no resolution, save for resolving to attend a mediation with a former Industrial Commissioner. It was the evidence of Mr Gill that there was a discussion about the differences between Mr Purvinas on the one hand, and a number of members of the Federal Executive on the other, and he considered himself as someone who could broker the differences between them. This appears to be an accurate description of the meeting. Mr Purvinas' personal notes of the meeting recount a plethora of issues that were raised by the members of the Federal Executive about his compliance with his employment contract, expense claims he had made, members of the Federal Executive wanting to be included on emails sent to the membership and concerns about him identifying himself as a "solicitor" on correspondence and whether he was acting as "solicitor" for the ALAEA. The evidence revealed that Mr Purvinas was so representing himself as being a "solicitor". If Mr Purvinas was holding himself in this way without a practising certificate and providing advice it would be in breach of the Legal Profession Uniform Law (Schedule 1 to the Legal Profession Uniform Law Application Act 2014 (Vic); s 4 of the Legal Profession Uniform Law Application Act 2014 (NSW)) and such conduct could expose the Union.
In addition, Mr Purvinas summarised various complaints that had been made about him which included: That Mr Purvinas' default position was to attack management; Mr Re complained that Mr Purvinas' communication skills were poor, and he had spoken with Mr Purvinas about that many times before; that Mr Purvinas "often blow[s] things up bigger than needs to be"; that he goes automatically on the defensive when something is raised and that Mr Purvinas showed contempt for the Federal Executive.
There was undisputed evidence from Mr Gill as to conversations he had had on two occasions with Mr Purvinas' as to his motivation for bringing the bullying application. This was unsurprising given that Mr Gill appeared to have an affinity with Mr Purvinas and had been given carriage of this matter, as Federal Secretary.
Mr Gill recalled during the Federal Executive meeting on 22 November 2023, one of the members of the Federal Executive referring to Mr Purvinas' behaviour as being "bullying and intimidating behaviour" (admitted for a non-hearsay purpose).
After the meeting, on a date which Mr Gill could not recall, he had a conversation with Mr Purvinas, in which Mr Purvinas said: I know what they are doing. They are going to take out a bullying order. I need to get in first.
This evidence was not disputed by Mr Purvinas, but when Mr Purvinas was questioned about it under cross-examination, he denied it. I do not accept Mr Purvinas' evidence. He put on no evidence in reply with respect to it. Mr Gill was not required for cross-examination. It was Mr Gill's evidence that he understood "they", within Mr Purvinas' comment, to be referring to other members of the Federal Executive. Mr Gill described himself as the "broker" of the differences between Mr Purvinas and members of the Federal Executive. Mr Purvinas records in his personal notes that Mr Gill, was one of the few, who made favourable comments about him during the Federal Executive meeting on 22 and 23 November 2023, noting that "Mr Gill said he had worked with me for many years and speaks to me regularly. He said I respond well to feedback when people take the time to give it". Mr Gill moved a motion for there to be a mediation between the Federal Executive (which Mr Purvinas wanted). Then, Mr Purvinas nominated Mr Gill as the person who should act as the Federal Secretary for the purpose of dealing with his bullying application. There is no basis upon which to impugn Mr Gill's evidence. I did not find Mr Purvinas a credible witness and I prefer Mr Gill's evidence over that of Mr Purvinas.
It is Mr Purvinas' evidence that Mr Gill spoke to him on 29 November 2023 about a discussion he had had with Mr Wyse on that day and was passing on a message "that [he] had 24 hours to resign if [he] wanted to keep his workplace entitlements". No evidence was led from Mr Gill in this regard.
Mr Purvinas went to the doctor on 28 November 2023. At some point shortly thereafter, he informed the Union that he was unable to communicate directly with several members of the Federal Executive because of a medical restriction he said was imposed by his medical practitioner. Given, it appears he did not attend a medical appointment until 28 November, it must have been some time after then. It was Mr Staddon's evidence that, by the following day, 29 November 2023, that "Mr Purvinas was citing some mental health concerns". Because of mental health challenges Mr Staddon had had in the past, Mr Staddon reached out to Mr Purvinas, initially by text early in the morning on 29 November 2023, and then spoke to him on the phone shortly thereafter. Mr Staddon was a new member of the Federal Executive at this time (having joined in November). He has known Mr Purvinas for approximately 30 years and they have previously worked together.
During that conversation, Mr Purvinas expressed his displeasure with the Federal Executive, in part, associated with what he said was a threat he had received that he ought to resign within 24 hours. It was Mr Staddon's evidence that Mr Purvinas said some things about his relationship with Mr Wyse and its difficulties and the issues he was having. In this context, Mr Staddon expressed some concerns about his health and offered support. It was Mr Staddon's evidence that Mr Purvinas said in response: There is nothing wrong with me mate, I am just doing this to keep the majority of these guys off my back.
By "doing this", the effect of Mr Staddon's evidence was that he understood that Mr Purvinas was raising mental health issues as a ploy, to which Mr Staddon was "shocked", as in his view, it "undermined people with mental health issues". When cross-examined about this issue, Mr Staddon stood firm. Curiously, an alternative version of the conversation was put to Mr Staddon by Mr Purvinas' Counsel, namely "I'll be right mate. I just want these fucking pricks off my back". Mr Staddon did not accept this, and explained why what Mr Purvinas had said to him was a "very striking comment" and "that part of the conversation ... really hit [him] hard". Mr Purvinas put on no reply evidence challenging Mr Staddon's evidence. At hearing, in his examination-in-chief, Mr Purvinas claimed that all that he said to Mr Staddon, as a means of deflecting the conversation away from his mental health, was "I will be fine mate", or, he later said under cross-examination "I'll be fucking right, mate".
I do not accept Mr Purvinas' evidence. It is my view that this is an instance of where Mr Purvinas was being untruthful. I prefer the evidence of Mr Staddon. There was no suggestion that Mr Staddon had a motive to be untruthful about this issue, rather, it was suggested to him that his evidence was effected by memory. It is clear that Mr Staddon and Mr Purvinas have had a long standing, sound, professional relationship. Mr Staddon sought Mr Purvinas out to assist him. Mr Staddon's evidence, as to why Mr Purvinas' comment as to his motivation for raising mental health issues stuck in his mind, was compelling.
A mediation of the bullying application took place on 12 December 2023. It was Mr Gill's undisputed evidence that after that mediation, Mr Purvinas said to him: "I had to take out the bullying application to get the guys to agree to the MOU" and then withdrew his application in early January 2024. It was Mr Purvinas' evidence that he did not recall saying this, but rather recalled saying: The MOU has been agreed by Rod and I which means the bullying application can be withdrawn, and the union could get back to some form of normality.
I do not accept Mr Purvinas' evidence that this is what was said, the MOU was never agreed. All that was agreed after the mediation was the proposed MOU would be put to the Federal Executive for a vote, and it was rejected on 19 January 2024.
However, the question is then what can be drawn from this statement as to Mr Purvinas' motivation for bringing the bullying proceedings and the other statements made, and thereafter, what can be gleaned from this evidence regarding Mr Purvinas' subsequent initiation of the s 164 proceedings.
I accept what Mr Staddon says Mr Purvinas told him. But to the extent that the motivation of "keeping the majority of these guys off my back" and other comments made, are illustrative of Mr Purvinas instituting the bullying proceedings for a collateral purpose, is difficult on the evidence to establish. I did not have a copy of the bullying application before me. There was very little exploration of Mr Purvinas' motivation for bringing those proceedings under cross-examination. There was also evidence that Mr Purvinas did have medical certificates certifying an "injury" and restrictions from 28 November until 23 July 2024. There was undisputed evidence that Mr Purvinas was prescribed medication and no dispute that he has taken it.
The more compelling evidence in the costs applicants' favour regarding Mr Purvinas' motivation for instituting the proceeding, is what Mr Purvinas foreshadowed as being his next step when he discontinued the bullying application. It is that evidence which has a real thematic and temporal connection to the instituting of the s 164 proceeding and is more persuasive.
On 2 January 2024, Mr Gill wrote to Mr Purvinas regarding the bullying application: Dear Steve, I am writing to you about the application you have made to the Fair Work Commission pursuant to Part 6-4B of the Fair Work Act 2009 (Application). As you know, you delegated dealing with the application on behalf of the ALAEA as the Federal Secretary to me. I am writing to you to invite you to discontinue the Application and to let you know the steps the ALAEA intends to take if that does not happen. The Application could not succeed as taken at its highest, it does not disclose a basis to conclude that you have been the subject of unreasonable behaviour which is the subject of that Part of the Fair Work Act. More importantly for immediate purposes, the Application is not competently made (and consequently the FWC is not empowered to determine the Application) because the ALAEA is not a "constitutionally-covered business" within the meaning of s 789FD(3). Given your qualifications, role and experience that must have been apparent to you when you lodged the application. I am inviting you to discontinue the Application and avoid the ALAEA and other named parties incurring unnecessary costs in responding to it. If you do not do so, because the FWC has requested a response from the ALAEA to the Application by 5 January 2024. The ALAEA will file a response to the Application stating that the Application is incompetent and ought be dismissed. The ALAEA will also seek a hearing to determine that question prior to the making of any further directions for the preparation of the matter for hearing. Should you elect to proceed and the Application is ultimately dismissed on jurisdictional grounds, the ALAEA will seek an order for costs against you pursuant to s 611 of the Fair Work Act. Should you withdraw the application now, it will not seek such an order. Given the above, the sensible course is to discontinue the Application now. Would you please let me know your response to the matters raised in this email by 4pm 3 January 2024. Regards Peter Gill
On 5 January 2024, Mr Purvinas sent the following reply: Hi Pete, As you have seen, the application has been discontinued. Your assertions below are misguided. The comparison to ALOI v TWU overlook the narrow issue the Court was required to determine. Among other things, in the most recent reported year, our non-membership subscription trading exceeded 30% of our total income related activity. This is a significant amount that weighs in favour of the ALAEA being deemed a constitutionally-covered business. My qualifications, role, and experience tell me that the test is on a case-by-case basis, including all relevant information, not just the one argument made by ALDI. The ALAEA could still advance a flawed jurisdictional argument. This would be an expensive exercise. I suspect the Executive would use member funds to run the argument up to the High Court to avoid answering bullying allegations. This would be detrimental to the ALAEA and detrimental to the union movement. I do not have unlimited funds; I just want the bullying to stop. That will be the case if the mediation MOU is accepted. If internal agreement cannot be reached, I will revisit s.164 relief where jurisdiction cannot be questioned. This would involve more recent rule incursions including the circumstances surrounding the engagement of Hitch Advisory. I will also need to resubmit the direct bullying concerns to you for internal processing. If common sense prevails, I hope this can be avoided, so our focus can return to member concerns. Cheers Steve P (Emphasis added.)
What Mr Purvinas' correspondence reveals, the month before he brings the extant proceedings, is that he had brought, and contemplated continuing to bring, proceedings to achieve what he wanted. This is clear from his response. If internal agreement could not be reached on the MOU, then he would "revisit s. 164 relief" where jurisdiction could not be questioned. This is in the context where he is proposing to bring this form of action, well before any motion or possible concerns had arisen as to the role of the Federal Secretary under r 27. That is exactly what he did.
After the MOU was not agreed to, and therefore "internal agreement" on his terms was reached, he then set about alternative ways to harass and embarrass the Federal Executive and to thwart the Union's capacity to manage him (which he described as bullying him), including possibly terminating his employment, within the safe harbour of a union rules case where jurisdictional questions could not arise (as had arisen in his bullying application). It could be argued against this that there is overlap between what Mr Purvinas had sought to achieve in the bullying application and the s 164 application - both may have involved disputation as to the extent of Mr Purvinas' powers. I am not satisfied that this was the case. I do not accept, ultimately, for the reasons articulated below, that the s 164 application was brought genuinely for this purpose.

[8]

1 February 2024 email

On 1 February 2024, Mr Purvinas had sent an email through Mr Re, to the Federal Executive, stating that "[t]he Workcover restrictions limit direct communication. If you need to get a message to the Federal Secretary, please do not do via Pete Gill. They should be made via the Workcover Officer Steve Re". Mr Purvinas listed eight people who were purportedly the subject of this restriction. Notably, there was nothing in the Workplace Certificate identifying who he could not have "direct communication" with. Additionally, he was directing the Federal Executive as to how they could communicate with him. He was now telling the Federal Executive that they could not communicate through Mr Gill (who was on the Executive) but had to go through Mr Re, who he described as the Workcover officer. No explanation is provided in the email as to why this was the case. Mr Purvinas had not identified Mr Gill as someone with whom he could not have direct contact.
None of the series of Certificates of Capacity, Mr Purvinas produced at hearing, contained any real specificity regarding the purported communication restrictions. The first certificate, dated 28 November 2023, indicates that Mr Purvinas was first seen by a doctor for this "injury" on 28 November 2023, and that he had restricted work capacity until 19 December 2023 which included "no communication with the alleged parties pending mediation". The same restriction appears in subsequent Certificates, but changed in January to "no communication with the alleged parties pending mediation/Stop bulling order application", then from February until July 2024 to "no communication with the alleged parties pending mediation/bullying investigation".
The timing of this email is palpable. As is evident from the above, the "no communication" restriction had been in place since 28 November 2024, but it was not until 1 February 2024, that Mr Purvinas decided to list who he had determined were the subject of this restriction.
It is my view that this communique formed part of Mr Purvinas' stratagem to frustrate the Federal Executives' performance of its work and to wield power from the shadows.

[9]

6 February 2024

On 6 February 2024, Mr Purvinas sent an extraordinary email to the Federal Executive (through his appointed conduit, Mr Re) stating that he would attend the next Federal Executive meeting as he "was not prepared to forgo his voting rights" but because of the Workcover restrictions, eight of the individuals (he claimed he could not have direct contact with) could not attend the meeting because "The WorkCover requirements take precedence" and therefore said that the Executive Meeting would have to be postponed unless effectively they agreed to his demands regarding further mediation. He ended this communication by positing the following Machiavellian question: Would Execs prefer?
John Murphy be arranged to continue mediation with the full Executive on the morning of 20th Feb. If a mediated outcome is reached, the Executive meeting proceeds.
No further mediation. Members of the Executive can meet informally, but it will not be an Executive meeting because nine of us will have WorkCover restrictions if we attend.
This evidence is stranger than fiction and was relied upon by Mr Purvinas. It illustrates Mr Purvinas' mode of operation - his way or the highway. Members of the Federal Executive tried to understand from Mr Purvinas, through his conduit Mr Re, how this could be the case - that he could effectively stultify their ability to have a Federal Executive meeting. Mr Purvinas resisted.
In this context, therefore, immediately prior to the creation of the disputed resolution, the Federal Executive had raised with Mr Purvinas concerns that they had regarding his performance. Mr Purvinas had brought a bullying application, they had attended mediation and he had discontinued that application but was still pressing for further mediation and them entering an MOU. However, at the same time, Mr Purvinas was, by reason of medical certificates he had obtained from his doctor, not communicating directly with eight members of the Federal Executive and was otherwise corresponding with the Federal Executive through another employee, Mr Re. Mr Purvinas was effectively telling the Federal Executive that they could not meet unless they agreed to his demands. Mr Gill told the Federal Executive, by email, on 7 February 2024, that he did not believe that the Executive meeting could be postponed because there was business that needed to be attended to, namely financial matters.

[13]

What Mr Purvinas did and did not do in relation to the proposed and ultimately disputed resolution

The evidence reveals that Mr Purvinas made no attempt to communicate with any member of the Federal Executive regarding the disputed resolution regarding his now described "deep concerns" as to its validity and encroachment on his role or powers under r 27. Despite being of the belief that there was a "lack of understanding" within the Federal Executive, he did not communicate with the Executive but rather worked behind the scenes. There was nothing in his medical certificate that restricted him from conveying his views directly to Mr Gill, or through Mr Re, regarding what he perceived to be the invalidity of the motion.
This was in stark contrast to what he had done in the past. It is evident, for example, that he sought advice in November 2023 as to the validity of the motion, which was received on 23 October 2023, reported that to the Federal Executive and thereafter reframed the motion.
Rather, what he did here, was to divert his attention to how to deal with the motion if it passed. It is my view that, contrary to Mr Purvinas' submission, what Mr Purvinas omitted to do (as referred to above) and did in fact do between 19 February and when he instituted the proceedings on 26 February 2024, strongly supports the inference that the costs applicants are seeking to draw regarding Mr Purvinas' motives for bringing the proceedings; namely, being predominantly to harass or embarrass and destabilise the power base of the Federal Executive which he believed was against him (who posed a threat to his ongoing employment). I do not accept that Mr Purvinas brought the proceeding because of his so-called "deep concerns" about the motion's validity and its encroachment on his Federal Secretary position.
On 19 February 2024, claiming travel expenses, he had meetings with staff in the Sydney office to create a strategy of what to do if the motion was passed. At that meeting, Mr Purvinas claims that, without the knowledge of the Federal Executive, he took steps to work out, with staff, "what the hell" they were going to do if the Executive passed the motion.

[14]

The preparation of the letter telling members that the Union could not act in their interests

First, he prepared the following letter, and instructed Mr Morgan, to send out "this bloody notice" if they carry the motion, which was in the following terms: 19 February 2024 ALAEA members By Email ALAEA Operations Dear member, This letter is notification that the ALAEA Federal Executive has established new provisions on how we deal with member enquiries and representations with employers/others. Formerly, these matters were managed by the Federal Secretary and ALAEA staff under authorities contained within the ALAEA rules. Until further notice, prior permission from the union's Executive is required before responding to emails, answering phone calls, attending meetings, or communicating via social media. Our union Executive meets each 3 months but can consider short notice questions for urgent matters. Executive members not employed by Qantas opposed this motion, but it carried anyway. As Federal Secretary, I am concerned about severe delays and difficulties servicing our membership. Its adoption will not just impact Qantas members, but the wider industry, where the ALAEA office is often the only avenue for assistance. I am however constrained by the terms of internal motions and must follow this directive until overturned. Apologies for any inconvenience this may cause. Yours sincerely, Steve Purvinas Federal Secretary
As is apparent from this communication, it is inaccurate and misleading. The Federal Executive had not "established new provisions on how" they dealt with member enquiries at all. There was nothing in the motion that said that Union staff required the Federal Executive's approval "to respond to emails, answering phone calls, attending meetings, or communicating via social media". Further, it makes no mention of the motion, or its terms being directed to the Federal Secretary. I accept the costs applicants' submission that this correspondence was constructed for the purpose of causing as much difficulty and embarrassment as possible to members of the Federal Executive who had supported the motion. Mr Purvinas chose, in the communication, to say "Executive members not employed by Qantas opposed this motion, but it carried anyway".
I accept, for the following reasons, that the situation described in this email was of Mr Purvinas' design. Attempts by Mr Purvinas to describe it as "contingency planning" are not accepted. I accept the costs applicants' submission that the communication was to describe a state of affairs that Mr Purvinas had himself brought about. Nothing in the motion required the Union to be closed. Rather, the "closure" was orchestrated by Mr Purvinas by him selectively giving and withdrawing delegations, evident from his discussions with staff on 19 February and in correspondence with the Executive on 22 February 2024.

[15]

Removing all delegations and telling staff that effectively no work could be done

Secondly, Mr Purvinas told the staff that any express or implied delegation he had given them to undertake their work was withdrawn and therefore the effect would be that those staff could not proceed in the normal way and field inquires working autonomously themselves.
What is remarkable about this conduct is, that on 19 February, on the one hand, Mr Purvinas is effectively telling staff to stop working and that he was withdrawing any express or implied delegations he had given to them, even before the motion was passed, purportedly on the basis of the motion and then on the other, delegating to Mr Morgan to send out the 19 February missive on 23 February in direct non-compliance with the terms of the motion.
Counsel for the costs applicants questioned Mr Purvinas as to why he could not give an instruction to staff to continue working in the way that they had prior to the date of the motion. Mr Purvinas replied that once the motion was carried "[he] felt - with my understanding of the words, that were very confusing, that [he], would no longer be able to delegate authority to anyone to represent the association". I reject this entirely. When asked as to why he did not keep the existing assumed or express delegations to staff in place, Mr Purvinas stated: That could have been possible, but it would have prevented staff coming to me if they had been stuck halfway through an issue and I had given them instructions to represent in this particular way. The scope of the matters that we deal with is so wide-ranging that I'm not understanding at any point in time when a staff member is going to come to me or what it's going to be about. It's - it's an area - a job at any given point in time can just differ from one to the next.
I do not accept his evidence at all. Mr Purvinas thereafter had to concede that there was nothing in the proposed motion that would have prevented staff from asking for Mr Purvinas' advice and counsel, nor of him expressing his opinion in relation to staff inquiries. To the extent that Mr Purvinas then suggested otherwise. I do not accept that was a genuine belief on his part. It is my view that he engineered the circumstances in order to cause as much damage to those who did not support him in the Federal Executive as possible.
Such an extraordinary step was taken despite the fact that, even on a broad reading of the motion, it did not have that effect. It concerned Mr Purvinas being required to act under direction, not the staff attending their duties. The absurdity of such a reading was borne out during Mr Purvinas' cross-examination - where he was cross-examined about the duties of the staff: Mr Morgan (solicitor), Mr Speers (industrial officer), Ms Applebee (receptionist) and Mr Stewart (organiser). To suggest that the effect of the motion was that Ms Applebee could not answer the Union office phone and answer membership inquiries is baffling. I do not accept at all that Mr Purvinas genuinely understood this to be the case. This disingenuousness was borne out by his cross-examination regarding the email sent to the Federal Executive on 22 February 2024.
If it was the case, that this was truly Mr Purvinas' view, he could not have done what he did in the 22 February email regarding continuing delegations, and, he certainly could not do what he did, in requiring Mr Morgan to send out his missive to all members on 23 February.
Thirdly, on 22 February 2024, Mr Purvinas set a communication, through Mr Re, to the Federal Executive in the following form: Hi Steve, Can you please forward to Execs. This email pertains to Kevin's ALAEA operational motion. I have been informed that an amended version has carried. I am not absent from duty, nor am I directing Pete to undertake the Federal Secretary role. The Federal Secretary position and functions cannot be assumed by any other person. I previously delegated authority to Pete for three matters, these delegations remain in place:
My workers compensation.
Internal finance complaint.
Qantas freighter handling. I previously delegated authority to Steve F to co-ordinate AMC activities. That delegation remains in place. I previously delegated authority to Chris B to do all things associated with AEI. That delegation remains in place. I previously delegated authority to Dean and Geoff to deal with Virgin in relation to manning through the funeral of a manager. That delegation remains in place. I previously delegated authority and directed Sean to release letters to employers in the event that the motion carried. I also previously delegated authority and directed Sean to release a notice to members about the situation. Those delegations and directions remain in place. Other assumed or express delegations are withdrawn. This email serves to notify Executives that permission to represent the ALAEA with employers and other unions cannot occur without my delegation. Permission will also be required before generating any ALAEA record that goes outside the Association. All requests should be sent to me, I will then seek Federal Executive permission before conveying the result to the person who has made the request. Staff must follow the same process. This will prevent anyone exceeding the motion. It will be impossible for 19 Executive members to run the day-to-day business of the Association. We have staff for that. This motion means we cannot even help members with urgent requests without Executive approval. Industrial staff cannot answer a phone call, text message, or email. Please regularly monitor your emails. A large volume of requests will follow. For all practical purposes, the Association is now closed. Steve P (Emphasis in original.)
As is apparent from this communication, Mr Purvinas was picking and choosing which delegations could remain in place. What is abundantly clear from this, is that Mr Purvinas in fact perceived that there was no impediment on his continued capacity (after the motion) to delegate. Mr Purvinas was continuing to delegate matters that were important to him (his worker's compensation claim and his internal finance complaint) to be undertaken by Mr Gill. He also continued allowing Mr Fotoulis to work on the Aircraft Maintenance Competition activities. Accordingly, this conduct was entirely inconsistent with there being any purported compulsion to immediately withdraw delegations. Mr Purvinas simply took this approach in relation to staff because of the damage it would cause the Federal Executive. He also reserved to himself apparently the authority to direct Mr Morgan to release the 19 February 2024 letter. To this end, on Mr Purvinas' approach, the motion did not prevent him from giving advance authorisations for representations to be made to the entirety of the ALAEA membership on ALAEA letterhead to every single member and also the employers that the union was dealing with. So long as the delegation was given beforehand, that was apparently permissible.
Fourthly, on 23 February 2024, Mr Morgan, on Mr Purvinas' instructions, sent the letter drafted on 19 February 2024 (extracted at [80] above) to all members of the Union. Notably, in the letter, Mr Purvinas stated that: Executive members not employed by QANTAS oppose this motion, but it carried anyway.
It was apparent that Mr Purvinas was at pains to communicate that the Federal Executive members who supported the motion are responsible for Mr Purvinas shutting down the operations of the Association. For the reasons set out above, I do not accept Mr Purvinas' attempts to justify that conduct by describing it as contingency planning. It was the very opposite. Contingency planning would have involved putting in place procedures for things to continue as close as possible to what they had prior to the motion. In the email of 22 February 2024, Mr Purvinas states "for all practical purposes, the Association is now closed." Mr Purvinas did not communicate to the Federal Executive before sending this to all members the fact that he was sending it, or his purported concerns as to the effect of the disputed resolution. Mr Purvinas also did not give the members of the Federal Executive copies of the notice that was to be sent to members.
Ultimately, I accept the costs applicants' submission that the situation (being the closure of the Union office and suspending all membership services) was constructed by Mr Purvinas for the purpose of causing as much difficulty and embarrassment as possible for the members of the Executive who had supported the motion. Mr Purvinas' communication was inconsistent with his assertion that he was concerned about complying with the motion and about member services.

[16]

Institution of the proceedings

On 26 February 2024, Mr Purvinas instituted the s 164 proceedings in the Federal Court, notably against the members of the Federal Executive individually and not the Union. Mr Purvinas did not provide Mr Gill with a copy of the application he had filed, despite him repeatedly asking for it and where Mr Purvinas had sought an early return date.
In that application, as foreshadowed, in his 5 January correspondence, he sought declarations of breach of s 164 and other provisions and an order restraining the individual members of the Federal Executive from giving effect to the resolution. Mr Purvinas did not articulate in his application what parts of the Rules he said were breached. It is only when one gets to the 37th paragraph of his supporting affidavit that one understands that he claims the resolution is a breach of r 27 of the Rules, because he says the resolution "takes away most of the authorities assigned to [him]" under that rule.
Mr Purvinas stated in his supporting affidavit that the resolution would prevent him from, among other things, doing any of the following, said to be "essential to the ordinary functioning of the union and its representation of its members" without the approval of the Federal Executive:
responding to or engaging in correspondence on behalf of ALAEA;
talking to or negotiating with employers;
engage with other unions or the ACTU;
meet their statutory audit and financial obligations;
appear in or deal with tribunals;
advise members;
assist members in disciplinary hearings or investigations;
delegating tasks to other staff.
Mr Purvinas stated that the resolution took "away most of the authorities assigned to [him] under rule 27" and would require him to: ... circulate dozens of requests each day to the Executive for all things like responding to the media, answering a social media question, a staff member replying to an sms message, and anything else captured by the resolution. Our office could not physically process more than six resolutions each day. Services we provide to members would back up causing lengthy delays. In the 12 months to the ALAEA Executive meeting on 20 February 2024. 29 out of session Executive resolutions carried. In the first 36 hours since being informed of the new requirement, 33 out of session resolutions have been raised to undertake tasks that previously did not require Executive approval.
Mr Purvinas stated that because the resolution would prevent him from performing his functions under the ALAEA Rules, "it would also effectively prevent the union from operating". His affidavit then reads like a manifesto: I am concerned about all members. The one who will suffer the most include approximately 600 General Aviation members who do not have local support structures to assist them with workplace problems. For them, the ALAEA is usually the first point of call for assistance with urgent problems.
For the reasons stated above, I do not accept that it was Mr Purvinas' genuine belief at the time he instituted the proceedings that the effect of the motion would prevent the Union from operating. Rather, this disingenuous allegation and his manifesto are consistent with Mr Purvinas using this safe harbour as a platform to harass, embarrass and destabilise the power base that he believed was a threat to his ongoing employment.
In part, this is revealed from other aspects of the supporting affidavit where Mr Purvinas sets out the circumstances giving rise to the application, this includes what he describes as the "Executive Disputation and Attempts to Resolve Internally", the fact of the mediation's failure, Mr Wyse wanting him to resign, what he wanted in terms of the MOU, and that it was not accepted by the Federal Executive and the fact of the Federal Executive seeking legal advice.
Mr Purvinas refers to Mr Re wanting the Executive to declare "any firm providing legal services" to them. Mr Purvinas had been aware that, since January, the Union were obtaining legal advice regarding whether they could terminate his employment. Mr Purvinas wanted them to include in the MOU, that they not be able to engage Hitch Advisory for any further legal work, he also wanted them to agree to not "suspend or terminate" his employment without valid reason, according to common law standards. It was Mr Purvinas' evidence that, by the time of the motion, a lot of things had happened, "particularly legal advice" Mr Wyse had obtained as to how to terminate his employment.
Also, what is omitted from the originating application is of some significance. No reference is made to Mr Purvinas' conduct between 19 and 23 February 2024.
The reason he commenced proceedings was to slow up his opponents from taking action against him and to undermine their power base by causing them aggravation and embarrassment. I do not accept that the predominant reason for Mr Purvinas bringing the proceedings was to test the level of supervision and oversight he could receive from the Federal Executive under the Rules.
This is apparent from what happened thereafter, which is set out below. After instituting the proceedings, when members of the Federal Executive indicated their preparedness to rescind the disputed resolution, Mr Purvinas did everything he could not to achieve the relief he had sought in the proceedings. This reveals that his true objective was not seeking to ventilate a dispute about a breach of the Rules and the relief sought in the motion.
The matter was listed for case management on 28 February 2024. At that hearing, the costs applicants, through their representatives, were asked, to clarify what they understood to be the scope of the resolution and the extent to which it did nor did not impede the duties of Mr Purvinas, as identified at [35] of his affidavit and referring the matter to mediation.
I accept the costs applicants' submission that, in this case, Mr Purvinas' subsequent conduct after instituting the proceedings, buttressed its argument that Mr Purvinas' in instituting the proceedings acted vexatiously. Even if I were wrong about this, it is my view, that on the basis of the matters described above, leading up to and including what was contained in Mr Purvinas' application, that those matters, of themselves, would have satisfied me that the application was brought vexatiously. Mr Purvinas' predominant purpose in the bringing the proceedings was to harass and embarrass the Federal Executive and destabilise the power base Mr Purvinas understood was against him.
In any event, the extraordinary events which occurred after the institution of the proceedings, only further fortify my view that Mr Purvinas' instituted the proceedings vexatiously. I do not accept Mr Purvinas' argument that he brought the proceeding because of a genuine concern he had as to the Federal Executive's encroachment on his position as a Federal Secretary's position and breaches of the Rules for the following reasons.

[17]

Events subsequent to institution of the proceedings

In accordance with the Court's orders, on 29 February 2024, the legal representatives for certain of the respondents (AEN Legal) sent a letter to Mr Purvinas, which set out, by reference to various parts of the Rules, what the role of members of the Federal Executive were, and then stated, that by the motion they had: … anticipated that, in the first instance, you would seek approval in each instance you commenced to engage in any of the above activities that are expressly listed above, that is representations on behalf of the Association and/or its Members. Whilst that process was anticipated to involve some initial work on the part of both parties, they expected that with some further transparency and dialogue about your activities, some effort on your part to address the concerns of the Executive, and some good will, the Federal Executive would be in a position to give directions in broader terms, which may have lessened the need for you to seek direction about particular activities. In particular, it was anticipated that, for everyday matters, such as representing individual members in matters before the Fair Work Commission and the like, that the Federal Executive may be able to give direction about your handling of those matters in broad terms, but for matters with broader consequences, such as consultations with employers about restructuring workforces and workplaces, or negotiations with employers, the Federal Executive would maintain a greater degree of oversight. Nothing in the Motion prevents any members of the ALAEA's staff, from continuing to perform their duties, including the duties of the industrial staff of representing individual members in their workplaces, in disciplinary meetings, and in matters before the Fair Work Commission, such as unfair dismissal proceedings, or disputes under enterprise agreements. Your stated view that the work of staff (apart from yourself) is prevented from proceeding by the Motion or the Rules is misplaced.
As part of this letter, they referred to the fact that Mr Purvinas was required to seek direction (as r 27 allowed) in undertaking his duties. Reference was made to the communication sent to ALAEA members on 23 February 2024 and to the Union's significant concern that the communication was not consistent with the terms of the Motion but then stated the following: To resolve your apparent confusion, some of my clients now propose to promulgate a motion for consideration by the Federal Executive to make expressly clear what the expectations of the Federal Executive are of you. You will be provided with that motion shortly by one of my clients as they will be the mover of the motion. I am instructed that you may have previously considered that you have some discretion as to when to submit and circulate motions to the Executive for review, debate and consideration of approval. In the view of my clients, no such discretion rests with the Federal Secretary and they trust that upon receipt you will be circulate the proposed motion for consideration and debate urgently in the present circumstances. If the motion is passed, that will likely render the present proceeding moot. However, my clients remain prepared to participate in the mediation process without derogation of any right they might have to make any application they see fit to dismiss the proceedings thereafter.
On 1 March 2024, AEN Legal sent Mr Purvinas the proposed motion by email, in the following terms (the Proposed Motion) which included: The Federal Executive resolves as follows:
That the resolution of the Federal Executive (proposed by Paul Staddon and seconded by Kevin Baldacchino) concerning the Federal Secretary (Motion) passed on 20 February 2024 be rescinded.
The Proposed Motion concerned directing the Federal Secretary, amongst other things, to keep an electronic diary, to provide written weekly report to the Federal Executive regarding his activities that week and the next week, to be accompanied at external meetings with employers with Mr Gill or Mr Wyse (or their nominee), to cease and refrain from sending mass communications to members or in the media (including social media) without approval from Mr Gill, to not access or read the electronic email accounts of members of the Federal Executive, not undertake interstate travel on the Union's behalf without approval from the majority of the Federal Executive and to not commence proceedings without approval from Mr Gill.
In addition, on 3 March 2024, Mr Baldacchino, wrote to Mr Gill laying charges on Mr Purvinas, under rr 24 and 40 of the Rules, concerning his purported breaches of the Rules arising from the abovementioned correspondence he sent on 22 and 23 February 2024 (the Baldacchino charges). The allegations, in part, mirror, certain of the bases that the costs applicants now rely upon, as to Mr Purvinas misrepresenting the circumstances for personal benefit and to deliberately incite anger and/or hatred towards the Qantas employed Executive members for personal benefit.
Mr Purvinas did not circulate the Proposed Motion between 1 March and 11 March 2024 to the Federal Executive. On 11 March 2024, AEN Legal wrote to Mr Purvinas asking that the Proposed Motion be circulated, along with any amendments, so that it could be considered and voted upon, given it was understood by Mr Re that he was proposing some amendments. On the same day, Mr Purvinas responded with a one-line response to AEN Legal stating that he understood that the "motion raised by Mr Wyse would not be legally valid".
On 12 March 2024, Mr Wyse then called for a special meeting of the Federal Executive to deal with the Proposed Motion. It was proposed that the meeting would also deal with allegations that Mr Purvinas had breached the Rules.
Mr Purvinas responded to the Federal Executive that he would be attending, but on the basis that the eight persons (he had previously identified that he would not have direct contact with) could not attend. Mr Purvinas was informed that some of those eight people might attend, to which Mr Purvinas replied: A formal notice of meeting will not be sent until a date can be found where (sic) 10 of us are available. The other 8 will not be able to enter if I am in the meeting. If they do, we will be in breach of OHS laws. At this stage with some who cannot attend Thursday, we have to explore other dates. It would not have been this way if the MOU agreed to at the mediation was accepted by Exec.
Mr Wyse expressed in his affidavit two concerns that he had with this communication. First, that Mr Purvinas was suggesting that members of the Federal Executive could be excluded from participation in the meeting and that he was entitled to determine that they be excluded. Secondly, that the exclusion of so many members from the meeting would mean that the meeting would likely not have a quorum.
An attempt was made by the Federal Executive to call a special meeting under r 13(4). Mr Purvinas did not call the meeting for the time and date nominated. Thereafter, Mr Purvinas determined that an Executive Meeting for May 2024 not take place.
I do not accept Mr Purvinas' justifications for his actions to obstruct the Federal Executive from taking steps to rescind the motion. It is my view that his actions fortify the costs applicants' case that he instituted the proceedings vexatiously.
Mr Purvinas now says that he did not accept its rescission until July 2024 when he says the "strings" were removed from the motion. I do not accept this for the reasons which follow. Mr Purvinas never attempted to suggest a "solution" that it be rescinded before then. He engaged in a remarkable cat and mouse game with the Federal Executive for months. His conduct was astonishing.
This is evident from what occurred after the 21 May 2024 meeting. After the resolution passed, Mr Purvinas claimed that any resolution at the meeting was "invalid" because he had not summoned the meeting and did not schedule it because he said the quorum could not be met. In his email of 20 May 2024, Mr Purvinas stated to the Federal Executive that they could not attend a meeting that week because it was "not confirmed" and "what you do at the gathering will be invalid and unenforceable".
I accept the costs applicants' submission that Mr Purvinas did not accept the validity of the resolution until then because he wanted to continue the proceedings to wreak as much havoc, embarrassment and obtain as much political milage as he could to protect his position (including his employment).
However, despite this, the meeting went ahead, and the Proposed Motion was passed and sent to him on 21 May 2024. In addition, to the rescission motion concerning the 20 February 2024 resolution, the Federal Executive also passed an additional motion directing the Federal Secretary to do a number of things (referred to at [111]) above.

[18]

The locking out of the Federal Executive

When the Federal Executive sought to meet on 6 June 2024, the doors of the Sydney Union office were locked. By email to Mr Gill that morning, Mr Purvinas wrote (which Mr Gill in turn forwarded to the Federal Executive): Additionally, I am concerned that some Executive members, without permission, will be attempting to enter the ALAEA premises today. I have not authorised, and do not permit access to, any part of the premises at 25 Stoney Creek Road Bexley NSW today by any Executive member aside from Stephen Re. Any infringement would constitute trespass. Monitoring provisions are in place. From today, and until further notice, no Executive member aside from Stephen Re, is authorised to enter the ALAEA office at the above address without prior written permission of the Federal Secretary. This is a workplace for ALAEA staff, and those staff should not be put in a compromising position. Can you please forward this notification to Executive members.
It beggars belief that the Federal Secretary of a Union would deprive the ability of its Federal Executive to meet at its registered office by locking the doors and sending staff home on the day that he knew that its Executive were coming in from all over the country to meet. I do not accept his evidence that he did this to avoid stress for the staff or because he did not summons the meeting a meeting could not take place.
On 16 June 2024, AEN Legal wrote to Mr Purvinas, noting the passing of the resolution on 21 May 2024 and inviting him to withdraw the proceedings which Mr Purvinas declined.
Given Mr Purvinas' continued intractable behaviour regarding his non-acceptance of the Federal Executive's rescission of the February disputed resolution at the meeting on 21 May 2024, on 9 July 2024, the Federal Executive passed another resolution, in the following form: NOTING THAT Mr Stephen Purvinas in Federal Court Proceeding No NSD 203 of 2024 seeks relief in respect of a motion, passed by the Federal Executive on 20 February 2024, which motion the Federal Executive rescinded at a meeting of the Federal Executive on 21 May 2024; NOTING THAT it has been claimed by Mr Purvinas in emails that the meeting of 21 May 2024 was not validly called; NOTING THAT the Federal Executive does not agree that the meeting was not validity called, or that the business transacted at the meeting, was not validly passed; NOTING THAT the Federal Executive considers it has already rescinded the motion; but wishes to avoid any doubt as to the question The Federal Executive resolves that the motion passed by the Federal Executive on 20 February 2024, concerning the oversight by the Federal Executive of Mr Purvinas, is, if not already rescinded, hereby rescinded.
Notably, it is clear from this motion that the Federal Executive was maintaining its view as to the validity of the 21 May 2024 meeting (and therefore the validity of the additional motion directing that the Federal Secretary do certain things referred to above).
On 9 July 2024, AEN Legal wrote to Mr Purvinas putting him on notice that the costs applicants would be seeking their costs under s 329 of the RO Act (which was repeated in their correspondence of 11 July 2024). Also on 9 July 2024, the Baldacchino charges were withdrawn.
On 10 July 2024, Mr Purvinas wrote to the Executive, through Mr Re stating: The gathering last night was not a legitimate Executive meeting. Amongst other deficiencies, it was not called by the Secretary, and there was only 19 minutes (sic) notice. It seems that most Executives would like to formalise the rescission of the disputed February resolution. This is welcome news. If properly validated, I would agree to seek leave to stop proceedings. That way timely member services could resume…….
Notably, r 13(1) of the Rules provides that the Federal Executive shall meet as often as deemed necessary in the opinion of the Federal Executive or when summoned by the Federal Secretary.
On 11 July 2024, the costs applicants' representatives again wrote to Mr Purvinas calling out what they perceived to be the disingenuousness of Mr Purvinas' stated that the formalising of the rescission motion was "welcome news" and described Mr Purvinas' conduct since the disputed resolution as designed to damage its operations and that the proceedings were brought for a vexatious purpose. In a response on the same day, Mr Purvinas sought to justify his action but then on 16 July 2024, Mr Purvinas wrote to the costs applicants' solicitor stating: Dear Mr Neilson, This offer is made on a without prejudice basis. I have considered:
your clients assertion that the disputed resolution was unequivocally rescinded on 9 July 2024, and the notification of the same sent to me on 10 July 2024; and
withdrawal of charges made by Mr Baldacchino against me for breaching the disputed resolution; and the notification of the same sent to me on 11 July 2024; and
your clients reliance at paragraph [97] in the affidavit of Mr Wyse dated 12 July 2024 claiming the 9 July 2024 resolution to rescind was passed by the Federal Executive. On a without admission basis, I intend not to contest the validity of the 9 July 2024 resolution above. Having regard to recent developments, and my intention not to contest the 9 July 2024 resolution, there would be little utility proceeding to a hearing of this matter. I intend to seek leave to discontinue the proceedings with no order as to costs. I invite your clients to consent to this sensible approach and seek instructions from you be 3 pm on 17 July 2024 including that no application would be made by your client should the matter be discontinued.
As is evident from the above, part of the costs applicants' basis for asserting that Mr Purvinas was vexatious in bringing the proceeding, was by his thwarting of their ability, in the short while after passing the disputed resolution, to meet and rescind the motion and then also, by his non-acceptance of their rescission of the motion on 21 May 2024. For the reasons outlined above, I accept that the costs' applicants are able to rely on these aspects of Mr Purvinas' conduct, as being illustrative of the fact that he did not genuinely want the ventilate his concerns regarding the operation of r 27 and its effect on his role as Federal Secretary in the proceedings he ultimately abandoned.
Mr Purvinas was at pains at the hearing to claim that his ultimate abandonment of the proceedings arose from the fact that the resolution, passed on 9 July 2024, rescinded the disputed resolution without having any strings attached to it and in circumstances where the Baldacchino charges had been dropped. I do not accept his evidence. First, it is not the case that there were no remaining "strings" attached. The 21 May 2024 motion had numerous parts. The 9 July 2024 resolution rescinded the 20 February motion, but it did not rescind the other aspects of the 21 May 2024 motion that contained "strings" directing Mr Purvinas to conduct himself as Federal Secretary in a particular way. Secondly, if Mr Purvinas was genuinely concerned as to the so-called encroachment of his powers under r 27 by the disputed resolution, the 21 May 2024 motion's "strings" themselves fell into the same category: Mr Purvinas did not amend his application to include them. Accordingly, the ultimate dispute as to the level of supervision and oversight the Federal Executive may have over Mr Purvinas remains live. Thirdly, Mr Purvinas had never canvassed with the Union that this form of resolution would redress his grievance, when it was clear he was never backward in coming forward about any of his views. Fourthly, as at 11 July 2024, he was still disputing the validity of the motion on 9 July 2024. Fifthly, the manner in which he sought to deprive the Federal Executive of its ability to meet and rescind the motion (and otherwise conduct itself) was extraordinary in the period between May and July 2024 and amounted to a calculated plan to keep the proceedings alive and inflict as much damage as possible upon those members of the Federal Executive who had voted in its favour in the first place.
Sixthly, his conduct in closing the office, removing delegations, locking its Federal Executive out, were actions that were completely antithetical to acting in members' interests and entirely inconsistent with a Federal Secretary concerned with the proper operation of and adherence to Union Rules. This extraordinary behaviour belies Mr Purvinas' submission as to his "proper personal interest", having been Federal Secretary for 17 years and keen to protect the interests of Union members.
I accept the costs applicants' submission that this whole situation has been constructed in order to provide a foundation for the commencement of proceedings seeking interlocutory relief with a view to using that as part of the wider dispute between the parties. Consistent with the warning Mr Purvinas had given Mr Gill on 5 January 2024, he saw s 164 proceedings as a safe harbour in which he could do battle with the Federal Executive, not over any grievance concerning the operation of Union Rules, but to harass and embarrass them and to use it as a means to destabilise the power base of the Federal Executive (who posed a threat to his ongoing employment).
The question is then whether the costs ought to be awarded on an indemnity basis. The authorities recognise that, once there has been a finding of conduct that enlivens the Court's discretion to award costs there is a discretion to award indemnity costs, under the similar statutory regime under the FW Act: Sabapathy v Jetstar Airways (No 2) [2021] FCAFC 68 at [15].
The authorities recognise that proceedings brought predominantly for an ulterior or collateral purpose may constitute the very type of case that justifies the making of a costs order on an indemnity basis: Packer v Meagher (1984) 3 NSWLR 486 at 499; Ragata Development Pty Ltd v Westpac Banking Corporation (1993) 217 ALR 175 at 177; Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 232-33. As was explained in Simpson v Malherbe (1865) 4 Giff 707 at 716: [W]hen the Court finds that a suit is instituted not bona fide for the direct ostensible purpose, but with a view to some ulterior and improper purposes, its duty is to see that those improperly sued in such a matter have justice done to them by a full and proper indemnity against all the expenses which they have unjustifiably been obliged to incur.
The costs applicants' say that by finding that the proceedings were brought vexatiously, it follows that costs ought to be awarded on an indemnity basis. No submission was made by Mr Purvinas as why, if the costs applicants were successful in their application, indemnity costs ought not be awarded in this case. For all of the reasons stated above, it is my view that costs ought to be awarded on an indemnity basis.