FEDERAL COURT OF AUSTRALIA
Wall, in the matter of an Inquiry Relating to an Election for an office in the
Ansett Pilots Association [2000] FCA 1568
INDUSTRIAL RELATIONS – election inquiry – election for new office bearers – applicant nominated himself for position of office bearer – nomination not in form required by rules of relevant association – rules of association contemplated remedying errors in nomination – whether nomination a nullity or merely defective.
INDUSTRIAL RELATIONS – election inquiry – applicant was office bearer – election for new office bearers – eligibility for nomination as office bearer dependent on position as member of committee of management – where annual general meeting purported to remove applicant from committee of management – applicant appointed to committee of management but had not assumed position at time of annual general meeting – timing of removal – whether removal effective.
INDUSTRIAL RELATIONS – election inquiry – applicant was office bearer – election for new office bearers – eligibility for nomination as office bearer dependent on position as member of committee of management – where annual general meeting purported to remove applicant from committee of management – removal pursuant to notice to members – whether notice effective on position applicant held or position he might hold.
Workplace Relations Act 1996 (Cth): ss 218, 219, 223
Hickson v Australian Electoral Commission (1997) 76 IR 127 followed
Re Election for Office in Australian Building Construction Employees and Builders Labourers Federation (1978) 30 FLR 252 referred to
Re Application by Shahid Naqvi (unreported, JB Sweeney J, 26 March 1981) referred to
Re Australasian Meat Industries Union (unreported, Keely J, 19 July 1988) not followed
Re Finance Sector Union of Australia (Insurance Employees Section); Re Hall (1994) 58 IR 19 referred to
Johnson v Beitseen (1988) 41 IR 395 referred to
IN THE MATTER OF PETER WALL and ANSETT PILOTS ASSOCIATION
AND IN THE MATTER OF AN APPLICATION BY PETER WALL FOR AN INQUIRY INTO AN ELECTION FOR AN OFFICE IN THE ANSETT PILOTS ASSOCIATION
V 727 of 2000
GOLDBERG J
3 NOVEMBER 2000
MELBOURNE
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
IN THE MATTER OF: |
PETER WALL Applicant
and
|
|
|
|
ANSETT PILOTS ASSOCIATION Respondent |
|
|
AND IN THE MATTER OF: |
||
|
AN APPLICATION BY PETER WALL FOR AN INQUIRY INTO AN ELECTION FOR AN OFFICE IN THE ANSETT PILOTS ASSOCIATION
|
||
|
DATE OF ORDER: |
||
|
WHERE MADE: |
||
THE COURT ORDERS THAT:
“Having regard to any relevant provisions of the Workplace Relations Act 1996 (Cth) and to the Rules of the Ansett Pilots Association (“the Association”), and assuming for the purposes only of the determination of this question, the validity of a resolution of the Annual General Meeting of the Association held on 15 August 2000 which purported to dismiss the applicant from office as a member of the Committee of Management of the Association, did that resolution:
(a) prevent, or
(b) exclude, or
(c) have any other effect upon
the applicant taking up office as an elected member of the Committee of Management of the Association at the conclusion of the Annual General Meeting of the Association held on 15 August 2000 pursuant to the applicant’s election to that office in a ballot conducted by the Australian Electoral Commission declared on 7 August 2000 and pursuant to the provisions of Rule 39(s)(i) of the Rules of the Association.”
be answered:
“No”.
2. The motion filed by the respondent on 4 October 2000 is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
IN THE MATTER OF: |
PETER WALL Applicant
and
|
|
|
|
ANSETT PILOTS ASSOCIATION Respondent |
|
|
AND IN THE MATTER OF: |
||
|
AN APPLICATION BY PETER WALL FOR AN INQUIRY INTO AN ELECTION FOR AN OFFICE IN THE ANSETT PILOTS ASSOCIATION
|
||
|
JUDGE: |
GOLDBERG J |
|
|
DATE OF ORDER: |
3 NOVEMBER 2000 |
|
|
WHERE MADE: |
MELBOURNE |
|
REASONS FOR JUDGMENT
Introduction
1 On 7 September 2000 the returning officer declared the result of the election for the offices of President, two Vice Presidents, Secretary and Treasurer of the respondent, the Ansett Pilots Association (“the Association”). As the number of nominations accepted did not exceed the number of vacancies a ballot was not necessary and the nominees were elected unopposed. The offices of Vice President were filled by Mr Nathan Miller and Mr Philip Yates. The applicant challenges the result of the election of the two Vice Presidents and claims that his nomination for the office of Vice President was wrongly rejected by the returning officer and that he was also excluded by the returning officer from being entitled to vote in the election for the offices because he was not a member of the Committee of Management of the Association.
2 Where a claim is made that there has been an irregularity in relation to an election for an office in an organisation registered under the Workplace Relations Act 1996 (Cth) (“the Act”) the Court has jurisdiction to inquire into the matter: s 218 and s 219 of the Act. By virtue of s 223 of the Act when an inquiry is held the Court is required to inquire into and determine whether an irregularity has happened in relation to the election and is empowered, inter alia, to declare the election to be void and to direct the Industrial Registrar to hold a new election: s 223(3).
Background
3 The Association is an organisation of employees duly registered under the Act and the applicant is a member of the Association. The Rules of the Association provide that the business of the Association shall be conducted by the Committee of Management which shall be elected each year. Although there are annual elections for the Committee of Management only one half of the Committee members come up for election each year. The Rules also provide that the members of the Committee of Management shall each year elect from their own number a President, two Vice Presidents, a Secretary and a Treasurer. Elections for the Committee of Management and the office bearers are to be conducted by a returning officer who is not the holder of any office in, or any employee of, the Association.
4 On 18 August 1998 a returning officer of the Australian Electoral Commission declared the result of the election for members of the Committee of Management of the Association. The applicant was one of the candidates declared elected as a member of the Committee of Management. Under the Rules of the Association the applicant became entitled to a term of office of two years. Accordingly the applicant came up for election this year. The election for this year was conducted by a returning officer of the Australian Electoral Commission. Nominations for the election of members of the Committee of Management opened on 25 May 2000 and closed at noon on 16 June 2000. A ballot was required and it opened on 7 July 2000.
5 On 21 July 2000 the President of the Association wrote to the applicant in the following terms:
“Re: Dismissal from COM
I bring to your attention that APA Rule 44 provides that a Committee Member may be dismissed from the Committee of Management by resolution of a General Meeting provided that the Committee Member sought to be dismissed is provided by the proposer of the motion with particulars of the grounds relied upon and is afforded a reasonable opportunity to be heard in answer to what is alleged before the meeting votes thereon. No Committee Member shall be dismissed unless he/she has been found guilty, under the Rules of the Association, of having misappropriated funds of the Association, substantially breached the Rules of the Association, grossly misbehaved or grossly neglected duty.
The following is notice of motion for 15 Aug 00:
‘WHEREAS Rule 25 provides that a Member of COM is obliged to attend every COM meeting, unless it is impracticable or impossible for him to do so, and participate in the affairs of the COM, and
WHEREAS Peter Wall has not attended six consecutive COM meetings, and
WHEREAS Rule 44 provides that a Member of COM may be dismissed from the COM for having misappropriated funds of the Association, substantially breached the Rules of the Association, grossly misbehaved or grossly neglected duty, and
WHEREAS Peter Wall has refused to reply to questions in writing relating to personal financial benefit, retention of APA assets, reimbursement of personal expenses, personal use of confidential Membership data,
BE IT RESOLVED that Peter Wall is dismissed from the COM’.”
On 2 August 2000 the Association sent to its members the agenda for the Annual General Meeting of the Association to be held on 15 August 2000. The agenda included as an item “Dismissal from COM”, a reference to the motion of which notice had been given to the applicant on 21 July 2000. For present purposes I assume that members were given proper notice of that motion although that is challenged by the applicant.
6 On 7 August 2000 a returning officer of the Australian Electoral Commission declared the result of the contested election for members of the Committee of Management. The applicant was one of the nominees declared elected. Rule 40(c) of the Association’s Rules provides that as soon as possible after the result of an election of members of the Committee of Management is ascertained, and wherever possible on the same day, the returning officer shall cause nomination forms to be distributed to all members of the Committee. This apparently occurred.
7 The Annual General Meeting of the Association was held on 15 August 2000. At that meeting the following resolution was passed:
“WHEREAS Rule 25 provides that a Member of COM is obliged to attend every COM meeting, unless it is impracticable or impossible for him to do so, and participate in the affairs of the COM, and
WHEREAS Peter Wall has not attended eight consecutive COM meetings, and
WHEREAS Rule 31(b) provides that a Member of COM who fails to attend 3 consecutive monthly COM meetings without valid reason may be dismissed from office, and
WHEREAS Rule 44 provides that a Member of COM may be dismissed from the COM for having misappropriated funds of the Association, substantially breached the Rules of the Association, grossly misbehaved or grossly neglected duty, and
WHEREAS Peter Wall has refused to reply to questions in writing relating to personal financial benefit, retention of APA assets, reimbursement of personal expenses, personal use of confidential Membership data,
BE IT RESOLVED that Peter Wall is dismissed from the COM.”
8 On 21 August 2000 the Association wrote to the returning officer at the Australian Electoral Commission in the following terms:
“At the Annual General Meeting of the Association on Tuesday 15 August 2000, Peter Wall was dismissed from the Committee of Management, and as a result Brice Halls is now a member of the Committee of Management. Also Ian Lazenby, Perth Base has resigned from the Committee of Management, the vacancy being filled by Andrew McConnell. Could you please forward a nomination form to Andrew McConnell and Brice Halls at the addresses below …”
9 The election for office bearers of the Association, consequent upon the declaration of the result of the election of the members of the Committee of Management, was conducted by Mr Shane Lanning, a returning officer of the Australian Electoral Commission. On 4 September 2000 the applicant sent a completed nomination form to Mr Lanning which purported to be the applicant’s nomination for Vice President of the Association. Rule 40(d) of the Association’s Rules provides that any Committee Member may be nominated by any other Committee Member for the position of President, Vice President, Secretary and Treasurer. As appears hereafter, the Association considered that the applicant was not a member of the Committee of Management because he had been removed from that office by the resolution passed at the Annual General Meeting of the Association held on 15 August 2000. In his nomination form the applicant nominated himself for the office of Vice President in the following terms:
“I, the undersigned eligible Branch Committee of Management Member, nominate:
Peter Wall
for the office of:
Vice President.”
In the nomination form the applicant consented to nomination in the following terms:
“I, Peter Wall,
being an eligible Branch Committee of Management Member, hereby accept nomination for the office named above.”
The applicant signed both his nomination and his consent.
10 On 5 September 2000 Mr Lanning sent the Association a list of nominees and nominators for the positions of office bearers in the Association and asked for certification that the nominees were eligible to stand for office. The list showed three nominees for Vice President: Mr Nathan Ellis, Mr Philip Yates and the applicant. On 5 September the Association responded to the returning officer:
“Thank you for the list of Nominees and Nominators for Office Bearers. I would like to advise that Peter Wall is no longer a Member of the Committee of Management.”
11 On 7 September 2000 Mr Lanning wrote to the applicant in the following terms:
“I have rejected your nomination for the office of Vice President as the information you supplied to me on 4 September 2000 was not satisfactory.
The Association records show that you are no longer a member of the Committee of Management.”
12 On 7 September 2000 the returning officer declared the results of the election for office bearers in the Association. As the number of nominations accepted did not exceed the number of vacancies he declared the candidates elected unopposed. The office bearers declared elected included Mr Nathan Miller and Mr Philip Yates as Vice Presidents.
13 On 22 September 2000, the applicant filed an application for an inquiry into the election of the office bearers. On 25 September 2000, being satisfied that there were reasonable grounds for the application, I ordered that the time for the inquiry be fixed as 10 October 2000.
14 On 2 October 2000 I ordered, pursuant to O 29 r2 of the Federal Court Rules, that the following question be set down for hearing and decided separately from any other question in the proceeding before the trial of the proceeding:
“Having regard to any relevant provisions of the Workplace Relations Act 1996 (Cth) and to the Rules of the Ansett Pilots Association (“the Association”), and assuming for the purposes only of the determination of this question, the validity of a resolution of the Annual General Meeting of the Association held on 15 August 2000 which purported to dismiss the applicant from office as a member of the Committee of Management of the Association, did that resolution:
(a) prevent, or
(b) exclude, or
(c) have any other effect upon
the applicant taking up office as an elected member of the Committee of Management of the Association at the conclusion of the Annual General Meeting of the Association held on 15 August 2000 pursuant to the applicant’s election to that office in a ballot conducted by the Australian Electoral Commission declared on 7 August 2000 and pursuant to the provisions of Rule 39(s)(i) of the Rules of the Association.”
Was the applicant’s nomination for the office of Vice President a nullity?
15 On 4 October 2000 the Association filed a notice of motion seeking orders that the order that the separate question be set down for hearing and decided separately from any other question in the proceeding be vacated and that the inquiry be terminated. The Association contended that the applicant’s nomination for the position of Vice President was a nullity as the applicant was named in the nomination form as both nominator and nominee. It was said that as the nomination could not have been accepted by the returning officer in any event, the outcome of the election would not have been affected by an irregularity predicated upon the exclusion of the applicant from the ballot on the ground that he was not a member of the Committee of Management. The hearing of that motion was stood over to the same time as the hearing of the separate question.
16 The Association’s motion depends for its success on establishing that the nomination for the office of Vice President submitted by the applicant was a nullity and not a nomination containing an irregularity or defect capable of being remedied. If the nomination was a nullity then, according to the submission of the Association, there can be no complaint about its rejection by the returning officer notwithstanding the issue which has arisen as to whether the resolution which was passed at the Annual General Meeting on 15 August 2000 had an effect on the applicant’s membership of the Committee of Management which he took up after the close of that Annual General Meeting. The issue was raised by the Association because it contended that if there could be no complaint about the rejection of the nomination, as it was a nullity, then the application for an inquiry pursuant to s 218 had no substance. It followed, said the Association, that the Court’s jurisdiction was not properly invoked and that the inquiry should be terminated pursuant to s 223(5) of the Act.
17 It is necessary to determine whether the applicant’s nomination was a nullity or rather one which contained a defect which was capable of being remedied. In the latter situation the Rules of the Association provide a mechanism whereby a person submitting a defective nomination is to be given the opportunity of remedying the defect. Rule 40 of the Association’s Rules sets out the procedure to be adopted for the nomination and election of office bearers in each year. Rule 40 provides:
“(a) The Committee Members shall each year elect by and from their own number the following Office Bearers:
(i) President
(ii) Two Vice Presidents
(iii) Secretary
(iv) Treasurer
(b) The yearly election of Office Bearers shall be by secret postal ballot of all Committee Members conducted by a Returning Officer, who is not the holder of any office in, or an employee of, the Association.
(c) As soon as possible after the result of an election of Committee Members is ascertained, and wherever possible on the same day, the Returning Officer shall cause nomination forms to be prepared and mailed or otherwise distributed to all Committee Members;
(d) Any Committee member may be nominated in writing by any other Committee Member for any of the foregoing positions;
(e) All Committee Members nominating candidates and all candidates shall be financial Members of the Association at the date such nominations close;
(f) Nominations must reach the Returning Officer or his/her agent or assistant acting under his/her direction at the designated address or addresses by the designated time on a day being not less than 21 days after nominations were called;
(g) Each nomination so received shall be examined by the Returning Officer conducting the election and if he/she finds a nomination to be defective he/she shall, before rejecting the nomination, notify the person concerned of the defect and, where it is practicable to do so, give him/her the opportunity of remedying the defect, within a period of not less than 7 days after his/her being so notified;
(h) Nominations shall be in writing and in the following form:-
I, …………………………………………………………………………………
being a financial Member of the Committee of Management of the Ansett Pilots Association hereby nominate …..……………………………
of ………………………………………………………………………………...
as a candidate for election to the office of …………………………………
to hold office for 1 year or until his successor is elected or such office is otherwise vacated in accordance with the Rules.
Signature of
Nominator: ……………………………………………………………………..
I, …………………………………………………………………………………
the undersigned nominee, being a financial Member of the Committee of Management of the Ansett Pilots Association hereby accept nomination for election to the above office.
Signature of
Candidate: …………………………………………………………………”
A provision such as is found in subpar (g) of Rule 40 is required because s 197(1) of the Act provides:
“The rules of an organisation:
(a) …
(b) …
(c) shall provide that, if the returning officer conducting an election finds a nomination to be defective, the returning officer shall, before rejecting the nomination, notify the person concerned of the defect and, where practicable, give the person the opportunity of remedying the defect within such period as is applicable under the rules, which shall, where practicable, be not less than 7 days after the person is notified;
…”
18 There is no doubt that the document submitted by the applicant to the returning officer as his nomination for the office of Vice President did not comply with Rule 40(g). It purported to be a nomination form nominating the applicant for the office of Vice President. It is headed “Nomination Form” and is in the precise terms required by Rule 40(h). I assume the document was sent to the applicant by Mr Lanning in accordance with Rule 40(c). The defect in it, and the matter upon which the Association relies to demonstrate that it is a nullity, is that it did not comply with subpar (d) of Rule 40 which requires the nomination of a nominee to be made by another Committee Member. By invoking Rule 40(g) such a matter is capable of being remedied by the applicant, if he is able, by procuring a Committee Member to sign the nomination form as nominator. There is nothing in Rule 40(g) or any other Rule which warrants the conclusion that a defective nomination is to be considered a nullity and incapable of being remedied because of a failure to comply with Rule 40(d).
19 The form and contents of the nomination form submitted by the applicant answer the description of a nomination for office. It is only by reference to Rule 40(d) that the issue of invalidity or defectiveness arises. What is the distinguishing factor by which one is to determine whether a nomination form, which fails to comply with a rule, results in the form being a nullity or rather a defective nomination capable of being remedied? For example, what would be the situation where the applicant was nominated by a member of the Committee of Management who was not a financial member of the Association on the date nominations closed? In such circumstances there would be non‑compliance with Rule 40(e). But would such non‑compliance render the nomination a nullity or rather defective and capable of being remedied either by another financial member of the Association who was a Committee Member signing the nomination form or another nomination form or by the unfinancial Committee Members paying his outstanding Association fees? The answer to this particular question is found in Hickson v Australian Electoral Commission (1997) 76 IR 127 to which I shall refer.
20 The proper characterisation of the applicant’s nomination form depends upon the content and effect of the Rules. There is no provision in the Rules which requires the conclusion that such non‑compliance is to be considered a nullity rather than a defect capable of remedy. No degree or extent of defectiveness is laid down by the Rules by reference to which any non‑compliance with the Rules is to be determined to be a nullity rather than capable of remedy.
21 Conceptually there is no material difference between the applicant nominating himself, resulting in the nomination not complying with Rule 40(d) and a Committee Member, not financial on the date nominations closed, nominating the applicant, resulting in the nomination not complying with Rule 40(e). The only issue is whether, in accordance with Rule 40(g), it is practicable to remedy the defect. In both cases the defects can be remedied albeit, depending on when the nomination was received, after the date nominations closed.
22 The Association supported its submission that the nomination of the applicant was a nullity rather than being irregular or defective by reference to the reasoning of Wilcox J in Hickson v Australian Electoral Commission (1997) (supra). That judgment was the subject of an appeal which was dismissed: Australian Electoral Commission v Hickson (1997) 76 IR 399, but the Full Court did not consider the observations of Wilcox J which are relevant to the present issue. Wilcox J was concerned with the Rules of the Automotive Food, Metals, Engineering, Printing and Kindred Industries Union (“AMWU”) which contained a rule similar to Rule 40(g). The Rules also provided that nominators of nominees for offices had to be financial members of the AMWU. Mr Hickson was nominated for the office of State Secretary of the New South Wales Branch. After nominations closed the returning officer notified Mr Hickson that his nomination was defective as one of his nominators was not a financial member of the AMWU at the closing date for lodging nominations as required by the rules. The returning officer said that unless Mr Hickson could produce evidence to the contrary by a specified date he would be obliged to reject the nomination. Within the required time the nominator paid his outstanding dues and Mr Hickson sent the returning officer a nomination with a substitute nominator should the first nomination not be allowed. Wilcox J held that the defect in the nomination was remedied twice. He rejected the proposition that the defect could not be remedied within the permitted time by the subsequent payment of the union dues and held that it did not matter whether the nominator was a financial member at the time of nomination as Mr Hickson had remedied the defect within the time permitted.
23 The reasoning of Wilcox J supports the applicant’s position rather than the Association’s position. Although Wilcox J said that the apparent purpose of a provision such as the equivalent rule to Rule 40(g) was to ensure candidates for an election had some support amongst their fellow members (p 136), it does not follow from his Honour’s reasoning that the nomination form in the present case must be considered to be a nullity rather than simply being defective. The Association relied upon this observation of Wilcox J in support of the proposition that a true nomination was one where one person nominates another person and the candidate does not nominate himself. One might question this proposition, but even if it be so, it does not follow, in the context of the Rules of the Association, that a nomination such as in the present case is not to be considered a defective nomination capable of being remedied but is rather to be considered a nullity. The reasoning of Wilcox J in relation to which is the correct characterisation of the nomination is, at the least, neutral and, at the most, supportive of the applicant’s position.
24 Wilcox J considered two judicial approaches to rules similar in terms to Rule 40(g). One approach (JB Sweeney J) gave a broader operation to such a rule; the other approach (Keely J) resulted in a narrower operation and the formulation of a nullity/remediable defect distinction. In Re Election for Office in Australian Building Construction Employees and Builders Labourers Federation (1978) 30 FLR 252, JB Sweeney J upheld a returning officer’s decision not to give a nominee for office a second chance to rectify a problem in respect of which the nominee had been given an earlier chance to remedy which had not been successful. Wilcox J observed that JB Sweeney J (at 132):
“did not consider nomination by an unqualified person to be an irremediable defect falling outside the terms of [the regulation similar to Rule 40(g)].”
In Re Application by Shahid Naqvi (unreported, JB Sweeney J, 26 March 1981), JB Sweeney J held that the rejection of a nominee’s nomination for office on the ground that he was unfinancial was wrong as the nominee was in fact financial at the time of his nomination. Wilcox J considered the reasoning of JB Sweeney J and said, at 133:
“The significance of Naqvi is simply the attitude of JB Sweeney J to the rule: his readiness to read it expansively and treat it as providing a generous opportunity to remedy a defect.”
Wilcox J then contrasted Re Australasian Meat Industries Union (unreported, Keely J, 19 July 1988) in which Keely J accepted a submission that the nomination of an unfinancial nominee constituted a defect that could not remedied under a rule similar to Rule 40(g) because the rules required nominees to be financial at the time of nomination. Keely J reached a similar conclusion in relation to an unfinancial nominator although that conclusion was apparently based upon a concession by counsel that subsequent payment of outstanding dues could not remedy a defect as the rule required the nominator to be financial at the time of nomination. Counsel had contended that a new nominator could be found. Keely J held that it was too late for a person to become a nominator after nominations closed.
25 Wilcox J then referred, at 134, to Keely J’s conclusion in Re Finance Sector Union of Australia (Insurance Employees Section); Re Hall (1994) 58 IR 19 that where a purported nominator was not entitled to nominate a person for election to office because the nominator was unfinancial at the time of nomination, the result was not merely a defective nomination, but that (Keely J at 21 in Re Hall):
“... it is ‘fundamentally flawed’ and is not a defective nomination that can be remedied.”
26 Wilcox J rejected the distinction between a defective nomination and a fundamentally flawed nomination and agreed with the approach of JB Sweeney J in Re Application by Shahid Naqvi (supra) that provisions like the equivalent provision to Rule 40(g) should be read liberally so as to enable any defect to be remedied. Wilcox J noted that there was nothing in the AMWU rules which justified a distinction between a “defective” nomination and a nomination that was “fundamentally flawed”.
27 Wilcox J reasoned, at 135:
It is apparent there is a significant difference between the approaches of J B Sweeney J and Keely J to provisions giving an opportunity to remedy a defective nomination. Keely J read such provisions restrictively, as excluding the opportunity for a nominee to remedy a defect arising out of non‑compliance with a rule requirement. The difficulty about that approach is that the issue only arises where the nomination is ‘defective’, that is, it fails to comply with the rules; so any rectification must have the effect of allowing to go to ballot a nomination that originally contravened the rules. Keely J sought to meet that point by drawing a distinction between a defective nomination and one that was ‘fundamentally flawed’. But he did not explain at what point a defective nomination should be regarded as fundamentally flawed. To say that a ‘fundamentally flawed’ nomination is one that cannot be remedied is to engage in circular reasoning.
The approach of J B Sweeney J, in contrast, was to read provisions like subr 10 of r 2 liberally, so as to enable any defect to be remedied; but there was to be only one opportunity for remediation.
With respect to Keely J, I think this is the better interpretation of such provisions. There is nothing in the AMWU Rules justifying a distinction between a ‘defective’ nomination and one that is ‘fundamentally flawed’. A nomination either complies with the Rules or does not. If it complies, there is no occasion to resort to subr 10 of r 2. If it does not, the nomination is defective or, to use a synonym, ‘flawed’. Of course, the relevant document must purport to be a nomination: it must be a document that proposes a particular person for a particular office. But if it answers that description, no question of degree arises; if the nomination is not good, it is bad. The word ‘fundamentally’ adds nothing.”
I agree with Wilcox J that the preferred approach to a rule such as Rule 40(g) is that adopted by JB Sweeney J rather than that adopted by Keely J. Like Wilcox J I consider the concept of a “fundamentally flawed” nomination, as distinct from a defective nomination capable of being remedied, to be elusive and of little assistance in the present context.
28 The Association relied upon the last observation of Wilcox (in the passage cited in par 27) as supporting its contention that the applicant’s nomination did not amount to a nomination as the applicant was not proposed for office by another person. I consider this observation supports the applicant’s position as, in all respects, the nomination form purported to be a nomination, albeit one not in accordance with Rule 40(d).
29 There is nothing in the Rules of the Association which warrants or justifies drawing a distinction between a defective nomination and one that is fundamentally flawed. Rule 40(g) contemplates that a nomination may be defective in such a manner as to be capable of being remedied, insofar as that is practicable. Neither that rule, nor any other rule, makes provision for a nomination which is so defective as to be considered a nullity as compared to a nomination which is capable of being remedied. Even if the Rules of the Association contemplated such a distinction I would not regard the applicant’s nomination as a nullity. It has all the attributes of a valid nomination save for its failure to comply with Rule 40(d). That failure is capable of being remedied if the applicant can procure a Committee Member to nominate him. It is for these reasons that I consider that the reasoning of Wilcox J in Hickson v Australian Electoral Commission (supra) supports the conclusion that the applicant’s nomination form is to be considered as defective and capable of being remedied rather than being a nullity.
Did the resolution at the Annual General Meeting dismiss the applicant from the office to which he had been elected on 7 August 2000?
30 I turn to the question whether the resolution of the Annual General Meeting of the Association on 15 August 2000 had the effect that at the time the applicant lodged his nomination form for Vice President of the Association he was not a member of the Committee of Management of the Association. I assume, for present purposes only, that the resolution, whatever be its proper construction, was validly passed.
31 The applicant made two general submissions in support of his contention that even if the resolution passed on 15 August 2000 was valid it did not prevent him, or exclude him, from taking up the office of a member of the Committee of Management to which he had been elected on 7 August 2000, nor did it have any effect upon him taking up that office. Firstly, the applicant contended that the notice of the resolution given to the applicant on 21 July 2000, and referred to in the agenda circulated to members of the Association on 2 August 2000, upon its proper construction, and having regard to the time at which the notice was given, could only operate in accordance with its terms in relation to, and was only referable to, the office he held at that time. That was the office of member of the Committee of Management to which office he had been elected on 18 August 1998 and which office was to be vacated or terminated at the end of the Annual General Meeting on 15 August 2000. Secondly, the applicant submitted that even if the resolution purported to remove him from the office of a member of the Committee of Management, to which he had been elected on 7 August 2000, and which office was to be assumed or taken up at the conclusion of the Annual General Meeting on 15 August 2000, the resolution was ineffective for that purpose and beyond the power of the Annual General Meeting so to resolve.
32 At the time I set down the separate question for hearing the applicant had articulated his second submission but not his first submission. The first submission only emerged in the course of oral argument and I gave the parties leave to file supplementary written submissions on the issue raised by that submission. The Association contended that the first submission goes beyond the scope of the issues covered by the separate question because the question expressly excluded consideration of the validity of the resolution. I do not accept that contention. The applicant’s submission accepts, for present purposes, the validity of the resolution and does not contend that it is defective. Rather, the applicant’s submission is directed to what he submitted was the limited effect of the notice of the motion, namely that at the time the notice of the motion was given to the applicant, and to the members of the Association, it did not relate to an office to which the applicant had not then been elected, and might never be elected.
33 The ballot for the election of members of the Committee of Management did not close until 12 noon on 7 August 2000 so that at the time the notice of the motion was given it was speculative whether the applicant might be elected for a further term. Nominations for the election of members of the Committee of Management had opened on 25 May 2000 and had closed at 12 noon on 16 June 2000. In the events which occurred a ballot was required and had opened on 7 July 2000, but on the dates upon which notice of the motion was given to the applicant, and to members of the Association, the ballot had not closed. It followed, said the applicant, that the notice of the motion, upon its proper construction, could only relate to the office then held which would terminate on the closure of the Annual General Meeting.
34 The Association submitted that the power of the Annual General Meeting to remove a person from office operated on the office held at the time of the exercise of that power. The Association further submitted that the notice of the motion given to the applicant, and to the members, could only sensibly be read as referring to an office held on 15 August 2000. However, put that way, the submission begs the question as the only office held by the applicant on 15 August 2000 was the office to which he had been elected on 18 August 1998. By virtue of Rule 39(s)(i) he did not assume or take up the office of member of the Committee of Management, to which he had been elected on 7 August 2000, until the closure of the Annual General Meeting.
35 The Association contended that there is no authority for the proposition that a notice cannot be given in the following circumstances – “If you are elected then at the following AGM, I will move for your removal”. Whether such a proposition is valid depends upon the outcome of the applicant’s second submission, but even if it be valid, it does not bear upon whether the notice of the motion was, in its terms, limited to the office held at the time the notice of the motion was given to the applicant on 21 July 2000 and to the members of the Association on 2 August 2000.
36 The notice given to the applicant on 21 July 2000, and to the members of the Association on 2 August 2000, was given pursuant to Rule 44(a) which provides:
“An Office Bearer may be dismissed from Office by resolution of a Committee of Management meeting, and a Committee Member may be dismissed from the Committee of Management, by resolution of a General Meeting provided that:
(a) the Office Bearer or Committee Member sought to be dismissed is provided by the proposer of the motion with particulars of the grounds relied upon and is afforded a reasonable opportunity to be heard in answer to what is alleged before the meeting votes thereon;
(b) …”
There is nothing in the notice of the motion that suggests that it is to operate otherwise than on the office which the applicant held at the time the notice of the motion was given to the applicant and to the members of the Association. It does not, for example, refer to the office of member of the Committee of Management to which he might be elected as a result of the then pending election. It should be remembered that that election was contested and a ballot had to be held which had not, on 21 July 2000 or 2 August 2000, closed.
37 If, as the Association contended, the notice of the motion could only be sensibly read as referring to an office held on 15 August 2000 and if the power of the Annual General Meeting to remove from office could only operate on the office held at that time, then the notice did not relate to an office to which the applicant had not yet been elected at the time the notice of the motion was given. Different considerations might have arisen if the notice stated words to the effect that “If you are elected to the Committee of Management in the current election the motion will relate to your removal from the position to which you are elected”. Notice in such terms was not given.
38 I conclude therefore that, upon its proper construction, the notice of the motion given to the applicant on 21 July 2000, and to the members of the Association on 2 August 2000, only related to the office of member of the Committee of Management to which the applicant had been elected on 18 August 1998 and that it did not purport, in its terms, to relate to any other office to which the applicant might be elected, in particular, the office for which he had nominated in the pending election.
39 The resolution passed on 15 August 2000 was passed in accordance with the terms of the notice of the motion and therefore was only effective in relation to the office of member of the Committee of Management to which the applicant had been elected on 18 August 1998. It did not have any effect upon the office to which the applicant had been elected on 7 August 2000 or upon the applicant taking up his office as an elected member of the Committee of Management.
40 It is therefore not necessary to address the second submission made by the applicant, namely that the resolution on 15 August 2000 was ineffective to remove him from an office which he had not taken up or assumed at the time the resolution was passed. However, as the matter has been fully argued I consider it desirable that I rule on that submission.
Could the Annual General Meeting dismiss the applicant from an office to which he had been elected but which he had not assumed?
41 The applicant submitted that the Association’s Rules did not provide for the disqualification or the dismissal from office of a person elected to an office so as to prevent that person so elected from taking up that office. The applicant submitted further that there was no authorisation given by the Act for the rules of an organisation to provide for the disqualification from office of a person elected to office so as to prevent the person so elected from taking up that office. The Association submitted that s 195(1)(c) of the Act, properly construed, provided for the removal from office of a person “elected to an office” and that Rule 44 reflected this provision. The Association further submitted that the decision in Johnson v Beitseen (1988) 41 IR 395 provided a complete answer to the separate question as it was based on almost identical facts and on an equivalent section to s 195, s 133(1)(f) of the Conciliation and Arbitration Act 1904 (Cth).
42 The Association contended that the reasoning of Gray J in Johnson v Beitseen (supra) supported the proposition that the Association’s Rules and the Act enable a person elected to an office to be removed from that office before the person had actually taken up or assumed that office. In Johnson v Beitseen (supra) the assistant secretary of a branch of the Confectionery Workers’ Union of Australia (“the Union”) gave written notice of her resignation which, in accordance with the branch rules of the Union, took effect one month after its receipt. Rule 12(e) of the branch rules provided that if a casual vacancy occurred in, inter alia, the position of assistant secretary, the position should be filled by election provided that if the unexpired portion of the term of office was twelve months or less the Committee of Management had the power to appoint a member to fill the vacancy. Rule 12(e) provided:
“Any person elected in accordance with this sub‑rule to fill a casual vacancy shall hold office until the expiration of the term of the person who he or she replaces.”
Rule 37 of the branch rules enabled the Committee of Management in certain specified circumstances to remove or suspend any officer from office at a meeting of the Committee of Management.
43 On the day the resignation was received the Committee of Management resolved that Mr Johnson take up the position of assistant secretary when the date of the resignation fell due, that is one month thereafter. Subsequently, Mr Johnson was excluded from taking up his duties of assistant secretary and the Committee of Management resolved on 25 November 1988 that there be an election for the position of assistant secretary upon the expiration of the period of notice of the resignation given on 8 November 1988. One of the issues before Gray J was whether Mr Johnson could be removed from the position of assistant secretary before the expiration of the period of the notice of resignation of the earlier incumbent, that is to say, whether he could be removed from the position of assistant secretary before he had assumed or taken up that position.
44 Gray J held that the meeting of 25 November 1988 did not have power to pass the motion that an election for the position of assistant secretary be arranged upon the expiration of the period of notice of resignation of the previous incumbent because s 133(1)(f) of the Conciliation and Arbitration Act (the provisions of which are now found in s 195(1)(c) of the Act) had not been complied with. Gray J held that s 133(1)(f) applied to a person appointed to fill a casual vacancy. His Honour rejected the submission that a casual vacancy was only filled when the person actually took up the office. Gray J said (at 420):
“Just as a person who was elected to an office, which he or she would actually take up at a later date, could not be removed in advance of taking up the office, without the safeguards provided by s 133(1)(f), so also a person who was appointed to take up an office could not be so removed. Mr Kenzie argued that an appointee to fill a casual vacancy only had the benefit of the protection of s 133AB(4) when the vacancy ‘is filled’, ie when the person actually took up the office. Such a construction would defeat the purposes of the sub‑section. In my view, a vacancy ‘is filled’ when the relevant body has made an appointment to it, even though the appointee will not actually take up the office until some later date. The vacancy which was to occur when Ms Jenkins’s notice of resignation expired was filled by the committee of management on 8 November, by its appointment of the applicant. The applicant was thereafter protected by the statutory provisions from being ousted unless the conditions provided for in s 133(1)(f) of the C and A Act were met. Those provisions are reflected in r 37 of the branch rules, which speaks of a power in the committee of management to ‘remove from office’, and provides that persons shall not be ‘removed … from office’ unless the conditions detailed in s 133(1)(f) of the C and A Act are met. That rule must be construed as protecting a person who has been appointed to fill a casual vacancy in an office, but has not yet assumed the position, because the office is still held by the person retiring from it. To construe it otherwise would be to have brought the rules into contravention of s 140(1)(a) of the C and A Act, by reason of their inconsistency with s 133(1)(f). It was not open to the committee of management to revoke the applicant’s appointment, without complying with all the provisions of r 37 of the branch rules, including giving him at least 14 days’ notice of a meeting to which he was summoned and specifying the ground or grounds upon which it was proposed to consider his removal from office.”
Gray J held that the resolution of 25 November 1998 was passed on the basis that no valid appointment had been made on 8 November 1998 and that a vacancy would exist in the office of assistant secretary once the incumbent’s notice of resignation expired. His Honour held that Mr Johnson was appointed as assistant secretary on 8 November 1998 on a full‑time basis from 8 December 1998 and that he had never validly been removed from office.
45 The Association submitted that it was implicit in his Honour’s reasoning that a person elected or appointed to office could be removed from that office prior to taking up or assuming the office provided that the procedure contemplated by s 133(1)(f) (now s 195(1)(c) of the Act) was complied with and the appropriate notice and particulars were given.
46 The particular circumstances in this case were not present before Gray J and his Honour did not decide the question presently in issue. His Honour was concerned with the protection to be afforded to an appointee to a position before dismissal and he was not specifically concerned to address the question whether, under rules such as apply in the present case, a person elected to an office can be removed from that office before taking up or assuming that office.
47 The rules in Johnson v Beitseen (supra) are not in the same terms as the Association’s Rules and I pay heed to the observation of Northrop ACJ in the Full Court in Australian Electoral Commission v Hickson (supra) at 408:
“It is important to remember, that when the proper construction of a provision is an issue, the Court should examine the provision and construe it in its context and according to the words used. When this has been done it may be useful to look at authorities of courts discussing the same or similar provisions. It is unwise to consider other authorities first. Too much time and effort can be expended on the construction of other provisions, often in different form, as a result of which the real issue before the Court is obscured.”
48 What is important in the context of the present circumstances is that Rule 42(c) provides that Committee members shall hold office:
“… until their successors are elected in elections held in accordance with these Rules unless they earlier transfer from their pilot base, die, resign or are dismissed from office.”
Rule 39(s)(i) provides that:
“At the closure of the Annual General Meeting, the newly elected Committee Members shall assume office”.
Further, Rule 44 provides that a Committee member may be dismissed “from the Committee of Management” by resolution of a general meeting in the circumstances there set out. It follows from these Rules that although s 195(1)(c) of the Act enables the Rules to provide for the removal from office “of a person elected to an office”, the Rules provide a mechanism and a procedure to achieve this result, but predicate such removal upon the person having taken up or assumed the relevant office from which it is sought to remove him or her.
49 It was not therefore open to the Annual General meeting on 15 August 1000 to remove the applicant from the office to which he had been elected on 7 August 2000 but which office he had not yet assumed or taken up and would not assume or take up until the closure of that meeting.
50 The question should therefore be answered “No”.
51 I will hear the parties as to whether any, and if so what, orders should be made as a consequence of my answering the separate question.
|
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. |
Associate:
Dated: 3 November 2000
|
Counsel for the Applicant: |
A J Macken |
|
Solicitor for the Applicant: |
A J Macken & Co |
|
Counsel for the Respondent: |
H Borenstein |
|
Solicitor for the Respondent: |
Jerome Willems |
|
Date of Hearing: |
10 October 2000 |
|
Date of Judgment: |
3 November 2000 |
