Rolph, John Charles v Transport Workers Union of Australia [1984] FCA 238

Smithers, Hoodward and tlerthrop Ju. ao July 19¢4 Hobart

) ) TASMANIA DISTRICT REGISTRY ) T. No. 1 of 1984 ) )

and TRANSPORT WORKERS UNION OF AUSTRALIA Respondent

CORAM: Smithers, Woodward and Northrop JJ. DATE: 25 July 1984 PLACE: Hobart -

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{IN THE FEDERAL COURT OF AUSTRALTA ) ) TASMANIA DISTRICT REGISTRY ) ) INDUSTRIAL DIVISION ) ) EX TEMPOPE JUDGMENT ) BETWEEN ;

preeriong pageg abe a true curv of ta Reasons for Judgment here7a of bes as wnt

This application cancerns a meeting of a union (being an

organization of employees uncer the Concarliction and Arbitration

Act 1904) which took place eight vears ago on 7 August 1976. 1t

was a special general meeting of the Tasmanian Branch cf the

Transport Workers Union ard was held pursuant to an order of the

Commoanvealth Industrial Courl that the rules of the Union he

we Nenah nk aba LE ee a ee aa LER Si aA nee) Cd aM ne Re eet ae

At the meeting certain charges were made against the appellant who was then the Branch Secretary. They were unanimously found to have been established to the satisfaction of the mecting, which the appellant chose not to attend. The meeting then passed a vote of no confidence in the appellant; and the Branch President who, in accordance with the Union rules and the

Court order, chaired the meeting, declarad the appellant's office

to be vacant as he was bound by the .vies to do. The appellant

fe hes brought this action seven years later because he obviously suffers from a deep sense of injustice. He is determined to take whatever steps are open to him to clear his reputation or the damage which he eels it suffered at the meeting, although he concedes that he cannot undo the several elections which have taken ploce since he was ousted from office. He secks, in essence, a doclaration that the meeting was not properly conducted and the meeting's conclusions not validlv

The present application marks only a preliminary step in the appellant's foreshadoved plan of campaiqn. He wishes to avoid

the effect of 3.171% of the Conciliation and Arbitration Act ('the

Act'), Wnich he belleves would prevent him from challenging the conduct and conclusions of the meeting becouse it is designed to protect union decisions and actions which have stood unchallenged for at least four years. He has applied under s.171G of the Act for a declaration that s.t?7iP should not be pernitted to prevent

his challenge to the meeting, because of the injustice he would

suffer if he were so prevented. The learned trial judge, ina

careful and detailed judgment, after hearing evidcnce, rerected

the application; and the appellant, who appeared jin person, has failed to persuade me that his Honour fell into any error in reaching his decision. On the contrary, his findings of fact are fully supported by the evidence and there 38 nothing T can usefully add tao what his Honour has said ubout the marits of the

There is however am aspect of the cpplication which was not raised before his Honour (or indeed hefore this Court until the matter was raised from the Bench) which recutres altention. It involves consideration of the precise effect of ss.17]F and 171G of the Act, the relevant parts of which are in the follewine

171(T)(1) EDeemed coxnplianced Subject to this section and ta section 1716, upon the e.rpiration of 4 years from ~ --

(i) by, or by persons purporting ta act as, a collective body of an orgerizstion or branch of an organization and purporting to exercise rower conterrcd by or under the rules of the organization or branch; or

(1i) by «@ person holding or purporting to hold an office or position jn oan organicaLlion or branch and purporting to exercise power conferred by or unler the rules of the organization or branch;

the act, .... shall, for all purpose heve heen done 3n ccnoliance wilh t organization or branen.

SECTION 17]G ORDER AFFECTING APPLICATION OF SECTION 1718 OR 171F

171G(1) C€Declaration of substantial injusticel Where, upon an application for an order under this section, the Court is satisfied that the application of .... section 171F to an act would do substantial injustice having regard to the interests of the organization. menbers or creditors of the organization or persons having dealings with the organization, the Court shall, by order, declere accordingly and, where such a declaration is made, .... section 171%, .... does not apply, and shall be deemed not to have applied, in relation to the act referred to in the declaration.

171G(2) CAnplication] The Court nav make an order under sub-section (1) on the apelication of the organization, a membec of the organigation or any person having a4 sufficient interest in respect of the orqanization."

The expeessicn ""coliective body" used in s.171F is

(a) an relation to an organizaticn - the committee of management or any conference, council, committee, panel or other body of~or within the organization; and »

{b) in relation to a branch of an organization - the committee of management or any conference, council, conmittee, panel or other body of or

It as tobe noted that the part of the Act thich contains ss.171A, 171F and 171G was inserted in 1974 when the conditions of registration for unions set out in Regulation 115 of

established. Those conditions include a requirement that unten

. rules provide for the electicn of (anong other things) "any conference, council, panel or other body (additional to the committee of management), which 15 empowered to determine policv

or to exercise functions of management in the association or

The close similarity of wording contained in s.171A of

the Act is noticeable and I believe that the effect of s.171F on a

proper reading is almost certainly dJinited to elected bodics

answering the description of a "collective body". It should not be extended - as is sought to be done in this arplication - to the

decisions of a general meeting of a branch of an organization.

' If £ am right sn thas, the application would be largely misconceaved. I say lergely wmisconceived because I am inclined to

the view that the act of the chairman of the meeting in declaring

the appellant's office vacanr, as he was bound to do after the

vote of no confidence sus passed, does fall within s.171F.

Although he was in one sense the mere creature of the meeting, he

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held his position of chairman by virtue of his office as Branch

President and he may therefore have been "purporting to exercise

power conferred by or under the rules of the... branch" within

the meaning of s.17]F(1)(a)(iz). On this view 1£ was open to the 5 appellant to challenge in these proceedings the validity of the steps which led up to ths chairman's declaration that the appellant's office tms vacant, and he was permitted to do so, but

For the reasons given by the learncsd trial judge, which I adopt,

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I prefer not to decide finally the questions of statutory interpretation, to which T have just referred, in @ case where one side jis unrepresented and the other is taken hy surprise. For the reasons J have given, the application is

probably either wholly or largely misconceived, but it fails in

any event on the merits as dealt with by the learned trial jude.

The only other point 1 wish to advert to is the proper approach to the test of "substantial inyustace" referred ta in 5.171G of the Act. The Court 15 required to have regard to any substancial injustice which may be suffered by mwenbers of the organization concerned. Loam preparc to assume for present purposes that substantial injustice to an individurl member nay fall within the moanine of the Act. But such irjuatice must be

looked at in the context of the interests of the wider mewbership

of the organization an order to determine whether the tert of substantial injustice is satisfied. Further, the injustice referred to must relate to the foreclosure of the right to challenge an act as a result of the passage of time. The question in this case is not "Did an injustice occur to the appellant at the meeting?" but "Nould it be unjust to orevent the appellart from challenging the proceedings of the peetang more than four years after it was held?" For the reesons given by the learned

trial judge the appellant has, in my view, failed to satisfy this

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I hereby certify that the six (6) preceding pages are a true and > accurate copy of the, Reasons for dudgment herein of The Hon. Hr. Justice Woodward . EZ

et a ee re de NS mel eats aire Letter ind ny Me ee ed arrest Geman ame oe

) ) . TASMANIA DISTRICT REGISTRY ) T. No. 1 of 1984 ) )

re rt TERRA TIER TST SREY ren Ree RR Re SER CE ITY SERINE SY Es TRC

Preveding- - peges - aie a true copy of the Rezsons for Judgment herein of the

THDUSTRIAL LAtl - valedatsun cf the acts of a collective holy of an

a at ra) tr mn fu4 t th mM n ray n s ay a Pan oO aa c ue uw vi

organization - meaning of 'collect that validation would do cubstantial injustica ~ how 'substantial injustice' shevli be tested.

Smitters. Noodaward and Uorthrop dd. 25 duly 1984 Hobart

) ) TASMANIA DISTRICT REGISTRY ) T. No. 1 of 1984 ) )

and TRANSPORT WORKERS UNION OF AUSTRALIA Respondent

CORAM: Smithers, Woodward and Northrop JJ. DATE: 25 July 1984 ELACE: . Hobart -

SRE IIEI IE ter agree re iemenemregre Sme es e e e eep pre we nas rape Sn ees er en eee

SMITHERS d.: I concur with the reasons therein of my brother

JUDGES: Smilhoes, Howl OALTT: ao July 1934 PLACE: Hobart

This application cenceens a meating of a union (being an organization of employees under the Conciliation and Arbitration

Act 1904) which took place eight vears ago on 7 August 15976 Lt was aospecial general meeting of the Tasnanian Branch of the Transport Workers Union ard was held pursuant to an order of the

At the meeting certain charges were made against the appellant who was then the Branch Secretary. They were unanimously found to have been esteblished to the satisfaction of the meeting, which the appellant chose not to attend. The meeting then passed a vote of no confidence in the appellant; and Lhe Branch Peesident who, in accordance with the Union rules and the Court order, chaired the meeting, declared the arpellant's office to be vacant as ha vas bourd by the .ules to do. The appellant

He hus brovaht Chis acticn seven years later because h obviously autfers eron a deen sense of aniustice. He us dGetevninod to tale whatever: cbeps sre open to him to clear his

reputation of the damage vhich he ffeeis it suffered at the

meeting, e&)ihoush he concedes that he cannot undo the several

elections which hive taken plece sines ha was ousted fron orfice.

He seeks, in essence, a dealaration that the meeting was not

properly conducted and the meetina's conclusions not validiv

The present apelication marks only a preliminary step in the appellant's foreshadowed plan of cawpaign. He wishes to avoid

the effect of 3.]71F of the Coneslietion and Arbitration act ('the

Act'), which he belicves would prevent hia From challenging the conduct and conclusions of the meeLling because it is designed to protect union decisions and actions which have stood unchallenged

for at Jeast four years. He has applica under s.171G of the Act

for a declaration thut s.t?7lP cheula net be peraitted to prevent

his chaJlenge to the neating, because of the injustice he woulda

suffer if he were so prevented. The learned trial judge, ina careful and detailed judgment, after hearing evidence, rejected the application; and the appellant, who appearcd in person, has failed to persuade me thet his Honour fell anto any error in reaching his decision. On the contrary, his findings of fact are fully supported by the evidence and there 26 nothing T can usefully add to what his Honour has said about the mérits of the application.

There is however an aspect of the epplication which was not raised before his Honour (or indecd scfore this Court until the matter Was raised from the Bench) which requires attention. It involves consideration of the precise effect of ss.171F and

171(F)(1) CDeened conpliancel Subject to this sectjon and to section 171G, upon the e.piravion of 4 years from ~ 2

(i) by, or by persons purporting to act as, a catjlective body of an orvanizstion or branch of an organization end purvpertinea to cxuercise nowlr conterrad by or under the rules of the organization or branch; or

(12) by a porsen holding or purporting to hold an office or position in an organization or branch and purporting to exercise power conferred by or under the rules of the organization or branch;

the act, .... shall, for a1] pucrases, be deened to have been dene In ccovinliance will, the rul.s of the oraganization ar branch.

SECTION 171G ORDER AFFECTING APPLICATION oF SECTION 171B OR 171F

171G(1) CDeclaration of substantial - injustice] Where, upon an application for an order under this section, the Court is satisfied that the application of .... section 171F to an act would do substantial injustice having regard to the interests of the organisation. members or creditors of the organization or persons having dealings with the organisation, the Court shalj, by order, declare accordingly and, where such a declaration is made, .... section 171F, .... does not apply, and shall be deemed not to have applied, in relation to the act referred to in the declaration.

171G(2) EApplication] The Court mav make an order under sub-section (1) on the aprlication of the organization, a merber of the orcanization or any person having a sufficient interest in respect of the organiuation."

The expressicn "collective body" used in s.i71P n s.-l71A in the followins terms: "collective body" means - (a) gn relation to an organization - the committee of management or any

conference, council, committee, panel or other body of - or saithin the oraanization; and '

(b) in relation to a branch of an organization - the committee of management or any confercnce, council, committee, panel or other body of or within the branch."

ss.171A, 171F and 171G was inserted in 1974 when the

conditions of registration for unions set aut in Regulation 115 of

established. Those conditions include a requirenent that unicn

rules provide for the electicn of (among other things) "any conférence, council, panel or other body (additional to the committee of management), which 1s empowered to 'determine policy or to exercise functions of management in the association or

The close similarity of wording contained in s.171A of the Act 1s noticeable and I believe that the effect cf s.171F on a proper reading is alnost certainly limited to elected bodics ansvercing the description of a "collective body". It should nat be cxtenided ~ as 1s sought to be done in this application - to the

If Iam right in this, the application would be largely musconceived. I say largely nmiscenccived Lecause I am rnelined to the view that the act of the chairman of the meeting in declaring the appellant's office vacant, as he wus bound to do after the vote of no confidence was passed, does fall within s.171F. Although he was in one sense the mere crcature of the meeting, he held his position of chairman by virtue of his office as Branch President and he may therefore have been "purporting to exercises power conferred by or under the rules of the... branch" within the meaning of s.17]F(1)(a)(1i). On this view 1t was open to the appellant to challenge in these proceedings the validity of the steps which Jed up to the chairrman's declaration thet the appellant's office was vacant, and he was permitted to do so, but for the reasons given by the learned trial judge, which I adopt,

~ - Pee ee Tern en ee ee nen _ nee eee eee: a aren

I. prefer not to decide finally the questions of statutory interpretation, to which I have just referred, in @ case

where one side is unrepresented and the other is taken by

surpceise. For the reasons TI have given, the application is

probably either wholly or larqely misconceived, but it faijJs in

any event on the merits as dealt with by the lcarned trial judqe.

The only other point 1 wish to advert to is the pruper appresch to the test of "substanti injustice" referred to in $.171G of the Act. The Court 15 required to have resard to ar substantiat injustLlee which may be suffered by wambers of the erqenization concerned. 1 am preparc to assure for present purposes that substantial injustice to an individual member may fall witnin the meanine of the Act. But such Injustice rmusy bo looked at in the contest of the interest. oF the wicer menbes shir of the organtuntion in order te determine whether the ter. of substantial injustice is satisfied. Further, the injustice referred to must relate to the foreclosure of the right to challenge an act as a result of the passage of time. The gure stion in this case 1s not "Did an injustice occur to the appellent at the meeting?" but "Nould it be unjust to prevent the appcllant from challenging the proceedings of the meeting nore then four years after it was held?" For the reasons given by tie learned trjal judge the appellant has, in my view, failed to satisfy this

I hereby certify that the six (6) preceding pages are a true and accurate copy of the, Reasons

) ) , TASMANIA DISTRICT REGISTRY ) T. No. 1 of 1984 ) INDUSTRIAL DIVISION )

and TRANSPORT WORKERS UNION OF AUSTRALIA Respondent

CORAM: Smithers, Woodward and Northrop Jd. DATE: 25 July 1984 PLACE: Hobart NORTHROP J. REASONS FOR JUDGMENT

prevedung - pavee - are a true copy of ihe" Feasons for Judgment herein of the

Dated: 6 Qigu<ot (96. | naan is alate ir ehamenaemeneee meee er tee