FEDERAL COURT OF AUSTRALIA

Dargavel v Cameron [2002] FCA 1234

INDUSTRIAL LAW – rule to show cause – whether national council of union had power to appoint an administrator of state branch where state secretary of union suspended – whether appointment of administrator ceased upon resignation of suspended state secretary – whether national council had power to direct state council not to appoint a state secretary or acting state secretary during the period of appointment of administrator – whether applicant validly appointed as state secretary – whether state council had power to appoint a state secretary during period of appointment of administrator – whether prior notice of resolution to be proposed at meeting required – whether resolution to appoint state secretary made for improper purpose – whether applicant fulfilled eligibility criteria for appointment as state secretary – whether administrator’s appointment could co‑exist with applicant’s appointment as state secretary – whether court can consider eligibility of applicant for appointment where no election inquiry.

Workplace Relations Act 1996 (Cth):  s 209

Johnston v Cameron [2002] FCA 948, applied

Johnston v Cameron [2002] FCA 634, referred to

Campbell v Higgins (1957) 3 FLR 317, referred to

McLure v Mitchell (1974) 24 FLR 115, referred to

Campbell v Crawford (1986) 12 FCR 317, referred to

Johnson v Beitseen (1991) 41 IR 395, referred to

Cummings v Macks (2000) 96 FCR 345, considered

Joyce v Christoffersen (1990) 26 FCR 261, considered

Allen v Townsend (1977) 31 FLR 431, referred to

Scott v Jess (1984) 3 FCR 263, referred to

In the Matter of an Election for an Office in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (von Doussa J, 12 October 1998, unreported), applied

Fohmsbee v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (1999) 88 IR 237, distinguished

Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37, considered

Landeryou v Taylor (1969) 15 FLR 147, considered

Ransley v Australian Public Service Association (Fourth Division Officers) Tasmanian Branch (1985) 12 IR 55, referred to

Magner, Joske’s Law and Procedure at Meetings in Australia 8^th ed. 1994 Ch 3

STEVEN DARGAVEL v DOUG CAMERON & OTHERS (according to the Schedule of Respondents)

V 573 of 2002

GOLDBERG J

4 OCTOBER 2002

MELBOURNE

THE COURT ORDERS THAT:

1.         Paragraphs 1, 2, 3, 3A and 5 of the Rule to Show Cause granted on 4 September 2002, as amended by leave on 11 September 2002, be discharged.

2.         The applicant not having pressed for an order in terms of paragraph 4 of the said Rule to Show Cause, paragraph 4 of the said Rule to Show Cause be discharged.

3.         The order made on 13 September 2002 that:

“Until the determination of this proceeding or further order, the Respondents refrain from making any resolution of the National Council of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union in terms of or in terms with the same or similar effect of paragraphs (i), (ii) or (iii) of the proposed resolution circulated to the Respondents on 4 September 2002 by the Third Respondent and annexed to the affidavit of Steven Dargavel sworn 4 September 2002.”

be discharged.

4.         The respondents are released from their undertaking to the Court that pending the determination of this proceeding they will not hear or determine the charges laid by Mr Julius Roe on 3 September 2002 against various persons.

Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

REASONS FOR JUDGMENT

Introduction

1                     For some time there have been issues between the National body and the Victorian State body of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the Union”).  There have been a number of proceedings instituted in the court between the two groups.  In the present proceeding the applicant, Mr Steven Dargavel, claims to be the Victorian State Secretary of the Union and says he was appointed to that position by a resolution of the State Council on 2 September 2002.  The respondents are the members of the National Council of the Union and they dispute the applicant’s claim.

2                     On 4 September 2002 I granted a rule, amended by leave on 11 September 2002, calling upon the respondents to show cause why the following orders should not be made pursuant to s 209 of the Workplace Relations Act 1996 (Cth) (“the Act”):

(1)        The first respondent, Mr Doug Cameron (the National Secretary of the Union), the second respondent, Mr Dave Oliver (the Assistant National Secretary of the Union), and the third respondent, Mr David Harrison (the Acting National Secretary of the Union), perform and observe the Rules of the Union and refrain from taking any step:

(a)        to co‑ordinate the work of the Victorian State Organisers and/or supervise the work of staff working in the Victorian State office of the Union; and/or

(b)        which would hinder or obstruct the Victorian State Organisers and staff working in the Victorian State office of the Union from complying with directions given to them by Mr Dargavel or otherwise working under the supervision of Mr Dargavel; and/or

(c)        which would otherwise obstruct the performance by Mr Dargavel of his duties as Victorian State Secretary under the Rules of the Union.

(2)        The first and third respondents perform and observe the Rules of the Union by taking all steps within their power and control necessary to restore to the same standard as was available on 12 August 2002:

(a)        the telephonic communications and computer services of the Victorian State offices at 440 Elizabeth Street, Melbourne;

(b)        the access to the State offices at 440 Elizabeth Street, Melbourne of Victorian officials and employees of the Union; and

(c)        the mobile phone and fuel card facilities provided to Victorian officials and employees of the Union;

(3)        The second respondent observe the Rules of the Union by taking all steps within his power and control necessary to provide to Mr Dargavel all files, property and other things which came into his possession and control by reason of the performance by him of the powers and duties of the Victorian State Secretary in his role as Administrator undertaken pursuant to resolutions of the National Council of the Union.

(4)        The respondents perform and observe the Rules of the Union by recognising that since 2 September 2002 Mr Dargavel has held and continues to hold the office of Victorian State Secretary and is entitled to perform the duties and responsibilities set out in r 29.3 of the Rules of the Union.

(5)        The respondents refrain from making any resolution of the National Council of the Union in the terms of three proposed resolutions circulated to the respondents on 4 September 2002 by the third respondent.

3                     The current issue relates to the control and management of the Victorian State Branch of the Union.  The combatants are respectively the Victorian State Council which claims to have appointed Mr Dargavel to the position of Victorian State Secretary and the National Council which claims to have appointed an Administrator, the second respondent (“Mr Oliver”), to control and administer the Victorian State Branch.  Under the Rules of the Union the Victorian State Secretary has the day‑to‑day management and control of the Victorian State Branch subject to the control of the Victorian State Council.

Background

4                     In July 2000 Mr Craig Johnston was elected Victorian State Secretary of the Union.  On 2 July 2002 a report into the Victorian Branch of the Union was delivered to Mr Cameron.  The report included a serious allegation against Mr Johnston.  On or about 3 July 2002 Mr Maurice Addison laid two charges against Mr Johnston under r 13 of the Rules of the Union.  The charges came before a meeting of the National Council on 9 July 2002.  The National Council resolved to hear the charges on 12‑14 August 2002 and also passed a resolution directing Mr Johnston not to perform the duties of the Victorian State Secretary.  The resolutions were in the following terms:

“Having regard to the charges of Bro. Addison and to the response of Bro. Johnston, National Council resolves pursuant to rule 13.9(a)(i), without expressing any view as to the truth or otherwise of the charges, that it is appropriate to proceed with the charges and calls upon Bro. Johnston to attend before a Special Meeting of the National Council to be held at the National Office, 133 Parramatta Road, Granville, commencing at 9.00am, 12 August 2002, to show cause why he should not be removed from the offices he holds in the Union, including the office of Victorian State Secretary.

National Council further resolves that until 5.00pm Wednesday, 14 August 2002, or until the decision of National Council in relation to the charge, whichever is the earlier, Bro. Johnston is directed to not perform any of the duties of the offices he holds in the Union, namely Victorian State Secretary and the ex officio offices he holds as a consequence of holding that office, Delegate to National Conference and member of National Council and during that time will not attend any meeting of the Union or attend any office of the Union;”

A further resolution appointing Mr Oliver as the Administrator of the Victorian Branch with all the powers of the State Secretary was passed in the following terms:

“National Council has resolved that until 5pm Wednesday 14 August 2002 or until the decision of National Council in relation to the charges, whichever is the earlier, Bro Johnston is directed not to perform the duties of the Victorian State Secretary.  National Council therefore determines, having regard to the extraordinary situation which exists in the Victorian Branch, that the following arrangements shall apply for the administration of the Victorian Branch during the period of this direction:

(a)       Assistant National Secretary Dave Oliver shall be the Administrator of the Victorian Branch and shall have all the powers of the State Secretary and carry out all the duties of the State Secretary.

(b)       Brother Oliver as the Administrator shall be assisted in the performance of his duties by all employees, officials and officers of the Victorian Branch.  Employees, Officers and Officials are directed to implement all directions of the Administrator given pursuant to the Rules and to take no action to overturn, contradict or affect such decisions.

(c)        Pursuant to the Rules including Rule 8 and Sub‑rule 26.2 the State Council is directed not to make any decision which:

·                     Alters or affects or contradicts any aspect of the decisions of National Council.

·                     Purports to appoint a State Secretary or Acting State Secretary pursuant to Rule 4A.12(ac).

·                     Purports to overturn or contradict or affect a decision of the Administrator concerning the management of the staff, officers or officials of the Branch or the allocation of their work unless the matter has first been referred to the National Council for its consideration.

…”

5                     On 17 July 2002 Mr Johnston applied to the court for, and was granted, a rule to show cause against Mr Addison and the members of the National Council.

6                     On 30 July 2002 Weinberg J made interlocutory orders restraining the National Council from taking any steps to give effect to the resolutions of the National Council made on 9 July directing that Mr Oliver be the Administrator of the Victorian Branch of the Union and have all the powers of the State Secretary and carry out all the duties of the State Secretary and restraining the implementation of other resolutions of National Council relating to the administration of the Victorian Branch:  Johnston v Cameron [2002] FCA 948.  His Honour found that there was a serious question to be tried on the issue whether adequate notice of the matters to be considered at the meeting of the National Council on 9 July 2002 had been given to members of the National Council prior to the meeting and whether the resolutions passed at that meeting were vitiated.

7                     On 31 July 2002 the National Council passed a further resolution in substantially identical terms to the resolution passed on 9 July 2002 appointing Mr Oliver as the Administrator of the Victorian State Branch with all the powers of the State Secretary.  The resolution was in the following terms:

“National Council has resolved that until 5pm Wednesday 14 August 2002 or until the decision of National Council in relation to the charges, whichever is the earlier, Bro Johnston is directed not to perform the duties of the Victorian State Secretary.  National Council therefore determines, having regard to the extraordinary situation which exists in the Victorian Branch, that the following arrangements shall apply for the administration of the Victorian Branch during the period of this direction:

(a)       Assistant National Secretary Dave Oliver shall be the Administrator of the Victorian Branch and shall have all the powers of the State Secretary and carry out all the duties of the State Secretary.

(b)       Brother Oliver as the Administrator shall be assisted in the performance of his duties by all employees, officials and officers of the Victorian Branch.  Employees, Officers and Officials are directed to implement all directions of the Administrator given pursuant to the Rules and to take no action to overturn, contradict or affect such decisions.

(c)        Pursuant to the Rules including Rule 8 and Sub‑rule 26.2 the State Council is directed not to make any decision which:

·                     Alters or affects or contradicts any aspect of the decisions of National Council.

·                     Purports to appoint a State Secretary or Acting State Secretary pursuant to Rule 4A.12(ac).

·                     Purports to overturn or contradict or affect a decision of the Administrator concerning the management of the staff, officers or officials of the Branch or the allocation of their work unless the matter has first been referred to the National Council for its consideration.

…”

8                     On 13 August 2002 the National Council passed further resolutions to extend the period of the suspension of Mr Johnston and the appointment of Mr Oliver as Administrator until 16 September 2002 or earlier decision of the National Council.  The resolutions were in the following terms:

“4.       National Council determines that the decisions of the meetings of July 9 and July 31 shall continue to apply except to the extent that they are modified by the decisions of this meeting.

5.         National Council determines:

(a)       To extend the suspension of Brother Johnston until 5pm Monday, September 16 or earlier decision of the National Council.

(b)       To extend the appointment of Brother Oliver as Administrator of the Victorian Branch until 5pm Monday September 16 or earlier decision of the National Council.”

9                     On 12 August 2002 Mr Cameron terminated the employment of Mr  Matson, a National industrial officer who performed work in the Printing Division of the Union.  On 13 August 2002 a picket line was established by members of the Union outside the offices of the Union situated at 440 Elizabeth Street, Melbourne (“the building”).  The building is owned by the Union and comprises ten storeys.  It is occupied and used by National and State officers of the Union as well as by other non‑Union tenants.  The picket line prevented any members of the Union and any other persons, whether involved with the Union or not, who wished to enter the building from gaining access to it.  Effectively a blockade was established outside the building which had the effect that it could not be used by any of its occupants.  Mr Dargavel has described what occurred outside the building on 13 August 2002 and on subsequent days as a “demonstration” but I am satisfied on all the evidence that what occurred is more appropriately characterised as a “picket” or “blockade”.  Persons who wished to gain access to the building were actively prevented from doing so by members of the Union who were standing around outside the building.

10                  On 13 August 2002 Mr Cameron made an application to the Court pursuant to s 209 of the Act for a rule to show cause calling upon a number of persons, including Mr Johnston, who were participating in the picket line, to show cause why they should not observe the Rules of the Union and enable access to be given to the building and terminate the picket line.

11                  On 13 August 2002 Finkelstein J granted a rule to show cause calling on the respondents in that proceeding to show cause why they should not perform the Rules of the Union by refraining from obstructing movement into and from the building.  His Honour also made an interim order that until 4.15pm on 14 August 2002 or further order, those respondents be restrained from obstructing an elected official, salaried officer or other staff member of the Union from entering or exiting from the car park or the building or from having free movement within the building or car park.  On 14 August 2002 Finkelstein J extended that injunction until 19 August 2002.  On 19 August 2002 his Honour extended the injunction against some of the respondents until the trial of the proceeding and extended the injunction against other respondents until 4.15pm on 26 August 2002.  On 26 August 2002 Marshall J extended the injunction granted against those respondents until the trial of the proceeding or further order.

12                  Notwithstanding the orders made by Finkelstein J on 13, 14 and 19 August 2002, the picket remained and people were obstructed from gaining entry into the building until on or about Monday 2 September 2002 when the picket was lifted.  Mr Dargavel was present at the picket on a number of occasions and there was a suggestion by the respondents that he was actively involved in the picket, but the evidence does not satisfy me that he actively obstructed or prevented any person from entering or exiting the building or its car park. 

13                  On 28 August 2002 Mr Cameron filed proceedings in the court against six persons Steven Rogers, Dennis Matson, Lorraine Cassin, Craig Johnston, Jim Reid and Paul Wisniewski, alleging that they were in contempt of various of the orders made by Finkelstein J.  Those contempt proceedings are set down for hearing on 28 October 2002.

14                  On 26 August 2002 Mr John Speight, the State President, received a request signed by thirty‑six State Councillors, a majority of the members of the Victorian State Council, requesting that a State Council meeting be called for Wednesday 28 August 2002 “to deal with any business that could not be dealt with on August 14, 2002”.  An agenda was attached to the request in the following terms:

“1.       Delegation

  2.       Metal organising rounds

  3.       Budgets

  4.       Ray Campbell appointment

  5.       Publicity.”

15                  Mr Speight wrote to all State Councillors the same day convening the meeting for 2 September 2002 in the following terms:

“Today I have received a request from a number of State Councillors to convene a meeting on Wednesday 28th August, 2002.

However, I have been informed by Bro. Oliver that the vehicle division had raised at the National Council that there is insufficient notice of this meeting for their delegates to attend.

Also due to the unlawful blockage outside the union office at 440 Elizabeth Street.  I have arranged an alternative venue for next Monday 2nd September, 2002 Victoria Trades Hall Council Annex starting at 11:00am.”

The agenda attached to the request to Mr Speight was not attached to, or otherwise enclosed with, the letter convening the meeting.  No other agenda was attached to, or enclosed with, the letter.

16                  On 1 September 2002 Mr Johnston told Mr Dargavel that he was resigning as State Secretary.  Mr Johnston asked whether he would be prepared to take on the position of State Secretary.  Mr Dargavel said he would think about it and needed to talk to his wife.  He spoke to his wife later in the day and then told Mr Johnston that he was prepared to take on the position.

17                  The meeting of the State Council was held on 2 September 2002.  When the meeting opened at 11.00am Mr Speight told the meeting that it was a Special Meeting of State Councillors called by a majority of members of the State Council.  He said that the matters listed on the agenda attached to the request he had received were the only matters which could be raised at the meeting.  Mr Reid said that there was no such thing as a Special State Council Meeting and that, as there has not been an August meeting, this meeting could deal with the full agenda.  Mr Speight said that the normal meeting was due on 11 September 2002.

18                  According to the draft minutes of the meeting, verified by Mr Dargavel, and which were not put in issue by the respondents, Mr Reid said that the meeting had been called in lieu of the meeting of State Council that should have been held in August.  He said that the meeting was to deal with the business that would have been attended to by the 14 August 2002 State Council meeting.  Mr Reid then moved a motion to allow the State Council to deal with the normal monthly business.  The motion, which was carried, was in the following terms:

“… Noting that the request for this State Council meeting by the majority of State Councillors was for a meeting to deal with any business that could not be dealt with at the monthly meeting of State Council on August 14th. 2002;

and noting that no business was dealt with at the monthly meeting of State Council on August 14th. 2002 because the meeting did not take place;

and noting that the Agenda for monthly meetings of State Council usually includes:-

[Ten reports were set out]

and noting that the request for this meeting of State Council also attached the following items to be included on the Agenda:-

Delegation

Metal Organising Rounds

Budgets

Ray Campbell appointment

Publicity

State Council accordingly determines that the Agenda for this meeting will be as follows:-

[Ten reports were set out]

Delegation

Metal Organising Rounds

Budgets

Ray Campbell appointment

Publicity.”

19                  The next item to be considered by the meeting was under the heading “Correspondence”.  Mr Reid said that Mr Johnston had asked him to deliver to the State President and the members of the State Council his letter of resignation from the office of State Secretary with effect from 11.00am that day.  Mr Reid then tabled the letter which was addressed to Mr Speight and which had been copied to Mr Cameron and to Mr Harrison.  The original of the letter was not given to Mr Speight. 

20                  The State Council passed a resolution accepting Mr Johnston’s resignation with effect from 11.00am on 2 September 2002 and then passed the following resolution:

“State Council determines that, in light of the vacancy in the office of Victorian State Secretary which now exists due to the resignation of Bro. Craig Johnston, pursuant to Rule 4 Part A Subrule 12(ac)(ii) State Council hereby appoints Bro. Steve Dargavel to the office of Victorian State Secretary until elections to fill the office of Victorian State Secretary are declared.”

Mr Oliver spoke in opposition to the resolution and said that it was in clear conflict with National Council resolutions.

21                  The State Council then passed the following resolution:

“Noting that the suspension of Craig Johnston has now ceased by reason of his resignation from office, and that accordingly the appointment of the Administrator Dave Oliver has lapsed, the State Council resolves and directs that Dave Oliver immediately vacate the State Secretary’s office and hand over to Victorian State Secretary Steve Dargavel all records, property and other things relating to the office of State Secretary which he has in his possession, custody or control.”

Mr Oliver spoke against the resolution saying it fell foul of existing National Council resolutions and then left the meeting.

22                  Mr Dargavel then moved a motion, which was passed, calling upon the persons who had been “demonstrating outside the union office in Elizabeth Street, Melbourne to end their demonstrations straight away”.  The picket or blockade terminated at approximately 1.00pm on 2 September 2002.

23                  Since that time Mr Dargavel has been involved in re‑establishing the operations of the Victorian State office which were substantially interrupted and impeded during the period of the picket outside the building.  However, Mr Dargavel has had difficulties in having staff members return to work in the building because they said that they had been told by Mr Oliver not to return to the building.  It was also claimed that they have been threatened with reprisals if they return to work in the building.  There has also been difficulty establishing telephone, facsimile and computer facilities and connections in the Union offices in the building.  A number of officials and organisers of the Victorian State Branch have been denied access to mobile telephones and to fuel cards.

24                  The reason why administrative staff in the Victorian State office did not return to the building and attend a staff meeting on 3 September 2002 was that Mr Harrison, the Acting National Secretary, had written a letter to all Victorian administrative staff on 2 September 2002 telling them that, until such time as National Council could determine otherwise, all Victorian administrative staff should continue to work in accordance with the arrangements which existed prior to 2 September 2002.

25                  On 2 September 2002 Mr Dargavel made contact with Mr Cameron and told him about the lack of co‑operation he was experiencing from the National office in the course of re‑establishing the operations of the Victorian State office.  Mr Cameron told him that he was one of the key instigators behind the picket line and that there was going to be a National Council meeting on 4 September 2002.  Mr Cameron said that Mr Dargavel’s appointment was not recognised unless the National Council endorsed it and that he should talk to Mr Oliver the Administrator of the Victorian Branch.

26                  On 3 September 2002 Mr Dargavel sent a letter by facsimile transmission to Mr Harrison telling him about the difficulties he was encountering since being appointed State Secretary.  Mr Harrison sent him a reply on the same day telling him that there would be a National Council meeting in due course to consider all issues relating to the Victorian Branch including Mr Johnston’s resignation and what Mr Harrison called the “purported decisions of the Victorian State Council meeting of Monday 2 September”.

27                  In short, Mr Dargavel has been inhibited in carrying out the responsibilities of the State Secretary of the Victorian Branch and has had difficulties in organising the staff of that office due apparently to actions taken by the National Council and National Officers. 

28                  On 4 September 2002 Mr Dargavel was shown a facsimile notice dated 4 September 2002 to members of the National Council of an urgent Special National Council teleconference meeting to be held on 5 September at 10.00am.  The agenda covered a number of matters relating to the Victorian Branch and included the following proposed resolutions:

“(i)      To declare that the purported decisions of the purported State Council Meeting of 2 September 2002 have been made contrary to the Rules of the Union and are thereby invalid and of no effect;

(ii)       To declare that the appointment of Brother Steve Dargavel to the office of Victorian State Secretary is contrary to the Rules of the Union and thereby invalid and of no effect;

(iii)      Notwithstanding (i) and (ii) above and pursuant to the general powers of management and control of the Union vested in the Union under rules 8 and 26.2 and for a temporary period as set out below in order to deal with the deep seated crisis in the Victorian Branch noted in the first part of this resolution:

(1)        The resolutions of National Council of 9 July 2002 relating to the operations of the Victorian Branch shall continue to operate except to the extent modified by those resolutions, this resolution and further resolutions of future meetings of National Council, until 30 June 2003 or earlier resolution of the National Council;

(2)        Brother Dave Oliver is to continue to act as Administrator of the Victorian Branch from the expiry of his present appointment on 16 September 2002 until 30 June 2003 or earlier resolution of the National Council with the powers and responsibilities conferred upon him by the resolutions of National Council referred to in (1) above and by any subsequent resolutions of the National Council;

(3)        Brother Oliver during the period he acts as Victorian Administrator is to report to the NAC and the National Secretary on his administration of the Victorian Branch on not less than a monthly basis;

(4)        Any official or salaried officer who, in relation to any particular direction of the Administrator, believes such a direction is contrary to the Rules or inconsistent with his or her duties to the membership in accordance with the Rules, shall report that matter in writing to the National Secretary who will determine the issue.  Any appeal or complaint from a determination of the National Secretary shall be made to National Council in accordance with the Rules;

(5)        The decisions of the purported meeting of the Victorian State Council of 2 September 2002 in relation to the appointment of Brother Steve Dargavel as Victorian State Secretary, Brothers Campbell and Matson as Salaried Officers of the Victorian Branch and in relation to the delegation additions and exclusions are to be overruled by this resolution and are to have no effect for any purposes whatsoever on and from the time of adoption of this resolution;

(6)        All actions and purported instructions and directions of Brother Dargavel between 2 and 4 September 2002 purporting to act in the capacity as Victorian State Secretary are to be overruled by this resolution and are forthwith not to be recognised, implemented and no longer complied with from the time of adoption of this resolution;

(7)        National Council will reconvene at a later time to be advised to members of National Council by the Acting National Secretary by means of a telephone hook‑up to consider under rules 13 and 36 whether the charges of Brother Roe referred to in paragraph (m) should be proceeded with and other matters required to be considered by those rules;

(8)        The operations of the Victorian State Council shall be suspended from the date of this resolution to 30 June 2003 or such earlier date as resolved by National Council;

(9)        For the avoidance of any doubt the resolution in (8) above should not, and this resolution as a whole shall not, affect the holding of any offices in the Victorian Branch of the Union (subject to any subsequent decisions of National Council or other bodies with authority to make decisions affecting those offices) or the continued operations of the Victorian Regional Councils and/or Executives (as they case may be) established under rules 48, 50, 52 and 54;

(10)      The Union is to advise the Industrial Registrar of the vacancy in the office of Victorian State Secretary in such time as to permit the election of a person to that office in the regular elections scheduled to occur in the first half of 2003 and to take office on and from 1 July 2003;

(iv)       To request the Acting National Secretary to urgently further investigate and report upon the losses and costs incurred by the Union arising from the imposition of the blockade from 13 August to 2 September 2002 and to be in a position to report on the Victorian Branch’s future operations in light of those losses and costs, and to provide such report to the National Council meeting scheduled for 16 September 2002.”

29                  On 4 September 2002 Mr Harrison wrote a letter to a number of businesses which provide services to the Union’s premises at 440 Elizabeth Street, Melbourne advising them that the property was owned by the National Council of the Union and that the only person who had authority to authorise the provision of services was the National Secretary or his nominee.  The businesses were advised not to take instructions from any other person in relation to the provision of services to the building.  The businesses were also informed that if they provided services as a result of instructions from any other person the Union would not be responsible for the payment of such services.

30                  On 4 September 2002 Mr Johnston was present on the fourth floor of the building where offices of the Victorian Branch of the Union are located. 

31                  On 4 September 2002 Mr Harrison received written charges against various officials and members of the Union in the Victorian Branch, including Mr Dargavel, dated 3 September 2002 which charges had been laid by Mr Julius Roe, the National President of the Union.  The charges, in general terms, related to conduct and circumstances relating to the picket or blockade outside the building between 13 August 2002 and 2 September 2002. 

Rules of the Union

32                  The Union is divided into a number of divisions which reflect the earlier existence of smaller unions that have amalgamated with the Union.  There is the Technical and Supervisory Division, the Vehicle Division, the Food and Confectionery Division and the Printing Division.  The metalworker members of the Union do not have a separate division.  Each division is geographically divided into regions which comprise the members of each State where the division has members.  Each division and region has its own governing body which interconnects with the governing bodies of the Union at a national and state level.

33                  The supreme governing body of the Union is the National Conference:  r 6.1, which is comprised of members of the National Council and other delegates:  r 5.2. 

34                  The National Council is established in accordance with r 7 and its powers are set out in r 8.  Rule 8.1 provides:

“The National Council shall be the Committee of Management of the Union and shall subject to the powers and decisions of the National Conference and these rules, have the care, control, superintendence, and management in all respects of the affairs, business, funds and property of the Union and without limiting the generality of the foregoing it may…”

35                  The National Administrative Committee is constituted under r 10.2 and it has the power to administer the affairs of the Union in accordance with the policies of the National Conference and the National Council.

36                  The Rules create various national offices as set out in r 10 and they include the National President, the National Secretary, Assistant National Secretaries and National Organiser.

37                  The Union is also divided into state branches.  Each state branch has a State Conference which is established under r 23 and which has the powers set out in r 24.  Below the State Conference lies the State Council which is established under r 25 and which has the powers set out in r 26.  The State Council is constituted as the executive body of the State Conference in accordance with r 26.2 which provides, inter alia, that the State Council shall:

“subject to the powers of the State Conference, National Conference and the National Council generally direct the work of the Union in the State, carry out particular responsibilities allocated to it under these rules and take all steps necessary and in accordance with these rules to strengthen the Union and further the interests of the members.”

Rule 26.4 which is headed “Supervision” provides:

“The State Council shall supervise and direct all work of all full‑time Officers, District Committees and other Committees of the Union established in the State.”

38                  Rule 27 provides for the appointment of state officials including, in particular, a State Secretary.  The powers and duties of the State Secretary are found in r 29.3 which provides:

“The State Secretary shall be entrusted and authorised to act on all matters concerning the activities of the Union in the State, subject to these Rules.  He shall be responsible for the co‑ordination of the work of the State Organisers and shall for all purposes be the main Executive and Administrative Officer of the Union in the State.”

Rule 29.3 also provides, under the heading “Control of Staff”, that the State Secretary:

“shall be responsible, in consultation with the State Council and subject to rule 8A of these rules, for the engagement and supervision of the work of the staff at the State office, for the maintenance of all necessary records of the Union, for the maintenance of complete record of the names, addresses and financial standing of all members in the State, and he shall forward an account to each member at least quarterly.”

39                  The Rules make provision for what is to occur when a vacancy occurs in national and state offices.  Rule 4, Pt A.12(ac) provides:

“(i)      Where a vacancy occurs in the offices of National President, National Secretary, Assistant National Secretary, National Organiser, State Secretary, State President, Assistant State Secretary and State Organiser otherwise than at the expiration of the term of office of the person elected thereto, the Returning Officer shall, subject in the case of National Organiser and State Organiser to rule 8A of these rules, as soon as practicable, conduct an election in accordance with this rule for the office; and

(ii)       pending the declaration of the result of the election the National Council may in respect of National offices or the State Council in respect of State offices may and in the case of National Organiser and State Organiser appoint to the office a member of the Union eligible for election to the office for a period not exceeding 12 months.”

The issues and questions which arise for decision

40                  The issues raised, and the submissions made by Mr Dargavel and the respondents, require answers to be given to the following questions:

1.         Did the National Council have the power to appoint an Administrator of the Victorian Branch in the circumstances which existed on 9 July, 31 July and 13 August 2002?

2.         If National Council did have the power to appoint an Administrator of the Victorian Branch in such circumstances:

(a)        what was the period of the appointment of the Administrator made by the National Council on the proper construction of the resolutions?

(b)        did the appointment of the Administrator lapse or terminate upon Mr Johnston resigning as State Secretary on 2 September 2002?

3.         Did National Council have the power to direct the State Council not to appoint a State Secretary or Acting State Secretary pursuant to r 4, Pt A.12(ac) during the period of the appointment of the Administrator by National Council?

4.         Did State Council have the power to appoint a State Secretary pursuant to r 4, Pt A.12(ac) during the period of the appointment of the Administrator by National Council or was it prohibited by the National Council resolutions from exercising its power of appointment?

5.         Was Mr Dargavel validly appointed to the position of State Secretary by State Council on 2 September 2002:

(a)        Was the State Council prohibited by the National Council’s resolutions from exercising its power to appoint a State Secretary?

(b)        Was Mr Johnston’s letter of resignation properly before State Council?

(c)        Was the State Council’s resolution of 2 September 2002 invalid because the meeting of 2 September 2002 was a Special Meeting of the State Council and required prior notice of the proposal to fill the vacancy of State Secretary to be given to the members of State Council?

(d)        Was the State Council’s resolution on 2 September 2002 invalid because notice of the proposal to fill the vacancy was not provided to all members of the State Council prior to the meeting?

(e)        Was the State Council’s resolution on 2 September 2002 invalid because it was made for an improper purpose being:

(i)         to bring the appointment of the Administrator to an end?

(ii)        to reinstate the effective control of the Victorian Branch to Mr Johnston?

(iii)       notforthepurposeof making anappointment under r 4, Pt A.12(ac)(ii)?

(f)         Was Mr Dargavel eligible to be appointed to the position of State Secretary on 2 September 2002?

6.         Can the appointment of the Administrator and Mr Dargavel be valid and effective at the same time?

7.         Is the Court empowered in a proceeding brought pursuant to s 209 of the Act to answer the issues raised in question 5, as a basis for refusing relief?

8.         If Mr Dargavel has been validly appointed as State Secretary, have the respondents, or some of them:

(a)        obstructed Mr Dargavel in the course of his duties?

(b)        refused to recognise Mr Dargavel as Victorian State Secretary?

9.         If Mr Dargavel has been validly appointed, does the National Council have the power under the Rules to remove him or otherwise nullify his appointment as State Secretary in the manner set out in the proposed resolutions circulated to members of the National Council on 4 September 2002?

10.       Does the National Council have the power to suspend the operation of the Victorian State Council in the terms contained in the resolution circulated to members of the National Council on 4 September 2002?

41                  Mr Dargavel’s submissions may be summarised in the following terms:

(a)        The National Council did not have the power to appoint an Administrator to the Victorian Branch;

(b)        The National Council resolutions authorising Mr Oliver to act as Administrator of the Victorian State Branch only had application while Mr Johnston was suspended from office.  Upon Mr Johnston’s resignation Mr Oliver’s authority lapsed.

(c)        The National Council has no power to reserve to itself the power to select the State Secretary of the Victorian Branch and prohibit an election of the State Secretary of the Victorian Branch by the State Council pursuant to r 4, Pt A.12(ac)(ii).

(d)        Mr Dargavel’s appointment as State Secretary was a valid appointment in accordance with r 4, Pt A.12(ac)(ii).

(e)        The meeting of State Council on 2 September 2002 was not a Special Meeting and no prior notice of the business to be transacted at that meeting was required by the Rules.

(f)         There was no basis for the contention that the decision by State Council to appoint Mr Dargavel as State Secretary was not a bona fide decision and was made for an improper purpose.

(g)        Mr Dargavel’s attempts to carry out his duties as State Secretary have been obstructed by Messrs Oliver, Cameron and Harrison who are in breach of the Rules by directing and seeking to supervise staff for whom Mr Dargavel has an express responsibility under the Rules.

(h)        The proposed resolutions to be put to National Council would invalidate the appointment of Mr Dargavel as State Secretary and are beyond the power of the National Council.

42                  The respondents’ submissions may be summarised in the following terms:

(a)        The National Council had the power to appoint an Administrator to the Victorian Branch and had the power to pass the resolutions on 9 July, 31 July and 13 August 2002.

(b)        Mr Oliver’s appointment as Administrator did not terminate or lapse on Mr Johnston’s resignation and continued until 16 September 2002.

(c)        State Council was prevented by the National Council resolutions from appointing Mr Dargavel as State Secretary on 2 September2002.  Its resolution was inconsistent with the National Council resolutions.

(d)        The resolution of State Council on 2 September 2002 appointing Mr Dargavel State Secretary was invalid because:

(i)         there was no evidence that Mr Johnston’s letter of resignation had been received by, or tabled at, the meeting of State Council on 2 September 2002;

(ii)        it was a Special Meeting and no prior notice was given to members of the proposal to appoint Mr Dargavel as State Secretary;

(iii)       it was not passed bona fide and was made for an improper purpose.

(e)        Mr Dargavel was ineligible on 2 September 2002 to be appointed to the office of State Secretary as he did not satisfy the eligibility criteria in r 4, Pt A.4(b)(iii).

Did the National Council have the power to appoint an Administrator to the Victorian Branch?

43                  Whether Mr Dargavel was validly and effectively appointed State Secretary on 2 September 2002 depends upon the proper construction and effect of the resolutions of National Council on 31 July and 13 August 2002 and whether the National Council had the power to appoint an Administrator to the Victorian Branch and to direct the State Council not to appoint a State Secretary. 

44                  The respondents submitted that r 8.1 empowered National Council to appoint an Administrator to the Victorian Branch.  Mr Dargavel submitted that the power under that rule did not extend to appointing an Administrator to a State Branch.

45                  Rule 8.1 is couched in very broad and general terms.  It commits to the National Council:

“the care, control, superintendence, and management in all respects of the affairs, business, funds and property of the Union …”

That power is subject only to the powers and decisions of the National Conference and the Rules.  There are no rules which contain provisions relating to the appointment of administrators to state branches and it is therefore necessary to consider whether there are any rules which contain specific provisions which might bear upon the appointment of an administrator to a state branch.

46                  Rule 25.1 creates a State Council for each State and r 26.2 provides that the State Council is to serve the purpose of an “executive body” of the State Conference and is to “direct the work of the Union in the State”.  However, in so directing the work of the Union in the State, State Council is subject to the powers of the State Conference, National Conference and National Council in the manner set out in r 26.2 (par [37] above).  Rule 27.1(a)(i) provides for the appointment of a State Secretary and r 29.3 sets out the duties of the State Secretary and constitutes the State Secretary as “the main Executive and Administrative Officer of the Union in the State”.  Rule 4, Pt A.12(ac) contains a process for the election of a State Secretary where a vacancy occurs in that office and the appointment of a State Secretary to fill the vacancy pending the election.

47                  Mr Dargavel submitted that the powers given to State Council in r 26.2 were such that, although its powers were subject to the powers of the State Conference, National Conference and National Council in relation to generally directing the work of the Union in the State, State Council was not subject to those powers when it had the power to carry out particular responsibilities allocated to it under the Rules.  It followed from Mr Dargavel’s submission that because State Council had the particular responsibility of being the executive body of the State Conference and to supervise and direct all the work of full‑time officers and committees of the Union established in the State:  r 26.4, and the particular responsibility of filling any vacancy in the office of State Secretary:  r 4, Pt A.12(ac)(ii), the appointment of an Administrator could not preclude the State Council from exercising those responsibilities.

48                  Mr Dargavel’s submission was predicated on a strained construction of r 26.2, the second paragraph of which provides:

“It [State Council] shall, subject to the powers of the State Conference, National Conference and the National Council generally direct the work of the Union in the State, carry out particular responsibilities allocated to it under these rules and take all steps necessary and in accordance with these rules to strengthen the Union and further the interests of the members.”

Mr Dargavel submitted that the absence of a comma after “National Council” in the second paragraph of r 26.2 meant that, properly construed, the phrase “subject to the powers of the State Conference, National Conference and the National Council” only governed and qualified the phrase “generally direct the work of the Union in the State” and did not govern and qualify the phrase “carry out particular responsibilities allocated to it under these rules and take all steps necessary …”

49                  I do not accept this construction of this part of r 26.2.  It distorts the grammar and meaning of the rule and in effect requires the words “and also” to be inserted before the words “carry out particular responsibilities”.  Properly construed r 26.2 provides that the State Council is subject to the powers of the State Conference, National Conference and, relevantly, National Council in carrying out particular responsibilities allocated to it under the Rules.

50                  Unlike the situation where a State Secretary resigns his or her position and a vacancy in that office occurs (see r 4, Pt A.12(ac)), there are no provisions in the Rules which cover the situation where an office‑holder, such as a State Secretary, is suspended from performing his or her duties by a body such as a State Council, State Conference, National Council or National Conference.  Suspension from duties is specifically recognised in the Rules; it does not result in a vacancy in the office where the office‑holder is suspended from duties but not dismissed from the office.  Rule 13 sets out a comprehensive procedure to be followed where it is proposed that persons be removed from elected office and for the laying of charges.  Rule 13.14 provides, inter alia, that National Council (where it is hearing the charge) may direct the person charged “not to carry out some or all of the duties attaching to his or her office pending the hearing of any charge” against that person.

51                  National Council determined that it would hear the charges laid against Mr Johnston.  This decision therefore enlivened the power to suspend Mr Johnston from carrying out his duties, which power was found in r 13.14.  It arose as a result of the charges laid by Mr Addison on 3 July 2002 and the decision of National Council to deal with the charges itself.  When it was invoked in the case of Mr Johnston a gap or void in the administration of the Victorian Branch occurred.  There was no‑one to carry out the duties of the main executive and administrative office of the Union in Victoria, as provided for in r 29.3, and there was no specific rule which provided how this gap or void was to be filled.  It was not a vacancy in the office of State Secretary for the purposes of r 4, Pt A.12(ac).  There was no rule which specifically reserved to the State Council or any other body the power, right or obligation to provide for the executive administration of the Victorian Branch in the situation where the State Secretary had been directed not to carry out his or her duties. 

52                  I adopt, with respect, the observation of Weinberg J in Johnston v Cameron [2002] FCA 948 at [167]:

“If the decision to suspend Mr Johnston created a vacancy within the meaning of Rule 4 sub‑rule 12(ac) [Marshall J’s] analysis [in Johnston v Cameron [2002] FCA 634] would indeed provide support for that proposition [that it was State Council, not National Council, that could appoint a person to act as State Secretary in circumstances where an official holding that position was suspended].  However, in circumstances where the Rules are silent as to what is to occur when a State Secretary is suspended, nothing should derogate from the general powers of management conferred, under Rule 8, on National Council”.

53                  It was therefore open to the National Council, and within its power in r 8.1, to appoint an Administrator of the Victorian Branch to take over the role of the main executive and administrative officer of the State Branch, that is take over the tasks normally committed to the State Secretary.  The exercise of the power under r 8.1 to make this appointment was not inconsistent with any specific power in the Rules committed to, or reserved for, any other body, in particular the State Conference or the State Council.  In this respect, this exercise of power by the National Council was not circumscribed or inconsistent with any power reserved for, or committed to, State Council.  The appointment of the Administrator fell within the power the National Council had in relation to “the care, control, superintendence and management” of the affairs of the Union.

For what period of time was Mr Oliver appointed as Administrator and did his appointment cease upon Mr Johnston’s resignation?

54                  Mr Dargavel contended that upon Mr Johnston’s resignation as State Secretary Mr Oliver’s authority as Administrator lapsed because the National Council resolutions only appointed Mr Oliver as Administrator whilst Mr Johnston was State Secretary.  It was said that as a result of Mr Johnston’s resignation there was a casual vacancy in the position of Victorian State Secretary which the State Council had the primary power to fill in accordance with r 4, Pt A.12(ac)(ii).  The respondents contended that Mr Oliver’s appointment as Administrator, and the effect of the resolutions of 9 July, 31 July and 13 August 2002, continued until 5.00pm on Monday 16 September 2002 and that the resolution of 2 September 2002 appointing Mr Dargavel as State Secretary was not effective as it was contrary to the terms of the National Council resolutions. 

55                  The resolutions passed on 31 July and 13 August 2002 by the National Council were not the subject of any proceeding after they were passed but they were challenged in this proceeding.  The arrangements set out in the resolution of 31 July (and also in the resolution of 9 July) appointing Mr Oliver as Administrator were expressed to apply “during the period of this direction”.  The “direction” referred to was the direction that Mr Johnston not perform the duties of Victorian State Secretary until 5.00pm on Wednesday 14 August 2002 or until the decision of the National Council in relation to the charges laid against Mr Johnston, whichever was the earlier.  By virtue of the terms of the resolution passed on 13 August 2002 that period was effectively extended until 5.00pm on Monday 16 September 2002.  Although National Council had earlier passed a resolution directing Mr Johnston not to perform the duties of the ex officio offices he held, namely delegate to National Conference and a member of the National Council, as well as the office of State Secretary, the resolution relating to the period during which the arrangements for the administration of the Victorian Branch were to apply was expressed to be for the period of the direction not to perform the duties of Victorian State Secretary.  The resolution was not expressed to be for the period during which Mr Johnston was directed not to perform the duties of delegate to National Conference and member of National Council. 

56                  I do not consider that the period of the direction was foreshortened or terminated by Mr Johnston’s resignation as Victorian State Secretary.  The arrangements in the resolutions were not expressed to apply during the period he occupied that position but rather, for a finite period of time, that is until a fixed time on a fixed date. 

57                  The tenor of the resolution of National Council on 31 July 2002 was that until 5.00pm on 14 August 2002 (subsequently extended by the resolution of 13 August 2002) or National Council’s decision in relation to the charges against Mr Johnston, the administration of the Victorian Branch was to be committed to the Administrator, Mr Oliver.  Mr Oliver’s authority was not limited to that period of time during which Mr Johnston was suspended.  Rather, it was limited to a finite date specified in the resolution, as extended by the subsequent resolution.

58                  There is support for this construction of the resolution in part of subpar (c) of the resolution which contained a direction to the State Council not to purport to appoint a State Secretary or Acting State Secretary pursuant to r 4, Pt A.12(ac).  If the resolution was to be construed as only applying during such time as Mr Johnston occupied the office of State Secretary, or until he resigned from that office, then there would be no point in the direction not to appoint a State Secretary as no such appointment could be made whilst Mr Johnston held and occupied that office.  However there would be a point in such a direction if the period of the appointment of the Administrator continued subsequent to any resignation by Mr Johnston as State Secretary and up to a particular point of time during which there was a vacancy in the office of State Secretary.

59                  Mr Dargavel submitted that I should not conclude that National Council had this construction of its direction in mind at the time the resolution was passed as the National Council had a more limited matter in mind when it passed the resolution.  Mr Dargavel referred to the resolutions passed by the State Council on 8 July 2002 which included a resolution that, during the absence of the State Secretary for any reason, Ms Bronwyn Halfpenny be authorised to carry out the duties and responsibilities of Victorian State Secretary.  It was said that this resolution explained why the National Council had passed the resolution inhibiting the appointment of a State Secretary or Acting State Secretary and that it should only be considered to be operative during Mr Johnston’s absence as State Secretary.

60                  The resolution of State Council may have been the catalyst for the resolution of National Council in relation to the inhibition on State Council appointing a State Secretary, although that is a matter of speculation.  Even if that be so, the terms of the resolution make it clear that the National Council was putting in place its administration arrangements for a specific period of time which was clearly spelled out – 5.00pm on 16 September 2002.

Did National Council have the power to direct the State Council not to appoint a State Secretary or Acting State Secretary during the period of the appointment of the Administrator?

61                  Mr Dargavel submitted that the National Council had no power to pass a resolution directing the State Council not to appoint a State Secretary pursuant to r 4, Pt A.12(ac).  Mr Dargavel submitted that a specific power had been given to the State Council under the Rules to appoint the State Secretary of the Victorian Branch and that the general power of management of the Union committed to the National Council in r 8.1 could not override that rule or the power contained in it.

62                  The resolution of National Council directing State Council not to appoint a State Secretary or Acting State Secretary pursuant to r 4, Pt A.12(ac) was predicated upon the fact that the State Secretary, Mr Johnston, had been directed not to perform the duties of Victorian State Secretary and that during the period of that direction an Administrator of the Victorian Branch had been appointed.  Although r 4, Pt A.12(ac) committed the power to State Council to appoint a State Secretary when a vacancy occurred in that office, and pending the declaration of the result of the election to that office, the purport of the National Council’s resolutions on 9 July, 31 July and 13 August 2002 was to ensure that the Administrator was in executive and administrative control of the Victorian Branch whilst the charges against the incumbent State Secretary Mr Johnston were pending.  I consider that the general power given to the National Council under r 8.1 to control, superintend and manage the affairs and business of the Union was sufficiently wide to enable it to entrench the appointment of the Administrator during that particular period.  That period was for a finite time or the earlier determination of the charges laid against Mr Johnston. 

63                  It was the unusual feature of the fact that charges had been laid against the Victorian State Secretary which enabled the National Council to exercise the wide powers which it did on 9 July, 31 July and 13 August 2002.  In normal circumstances the National Council could not take away from the State Council the power to appoint a State Secretary pursuant to r 4, Pt A.12(ac) where a vacancy had occurred in that position.  In normal circumstances, and in the absence of an extraordinary or unusual situation such as the present where charges had been laid against the State Secretary and he had been directed not to perform his duties, it would not be open to the National Council, pursuant to r 8.1, to direct the State Council not to appoint a State Secretary pursuant to r 4, Pt A.12(ac) where a vacancy existed.  This is because in the event of a vacancy in that position r 4, Pt A.12(ac)(ii) specifically reserved that power, and committed it, to State Council:  Johnston v Cameron [2002] FCA 634 at [29]‑[30]; Johnston v Cameron [2002] FCA 948 at [115], [167].

64                  Although State Council ordinarily has the power to appoint a State Secretary to fill a vacancy in that office in accordance with r 4, Pt A.12(ac)(ii) until an election is held to fill that office, in the particular circumstances of what had occurred, and as at 9 July, 31 July and 13 August 2002, that power was subject to the power of National Council found in r 8.1 to pass the resolutions which it did on 9 July, 31 July and 13 August 2002.

65                  National Council had the power to direct the State Council not to appoint a State Secretary or Acting State Secretary during the period of the appointment of the Administrator because there was no specific power reserved to State Council to appoint a State Secretary or an Acting State Secretary during a period when the State Secretary was suspended from his duties in accordance with a resolution of National Council passed pursuant to r 13.14.

Did State Council have the power to appoint a State Secretary during the period of the appointment of the Administrator or was it prohibited by the National Council resolution from exercising its power of appointment?

66                  It follows from my finding as to the duration of the direction of the National Council that at the time State Council passed the resolution appointing Mr Dargavel as State Secretary the arrangements specified in the resolutions of National Council on 31 July 2002 were still in place, namely that the State Council had been directed not to make any decision which purported:

“To appoint a State Secretary or Acting State Secretary pursuant to R 4A.12(ac).”

67                  Although a casual vacancy in the position of Victorian State Secretary may have arisen on 2 September 2002 as a result of Mr Johnston’s resignation, the resolution of National Council on 31 July, as extended on 13 August, precluded State Council from appointing Mr Dargavel in the terms which it did.

Was Mr Dargavel validly appointed as State Secretary?

68                  I have already found that the State Council was prohibited from appointing a State Secretary or Acting State Secretary on 2 September 2002.  However, the respondents raised a number of subsidiary issues in relation to the validity of Mr Dargavel’s appointment which, for the sake of completeness, it is appropriate I address.

Was Mr Johnston’s letter of resignation properly before State Council?

69                  The respondents submitted that the original letter of resignation by Mr Johnston had not been produced at the hearing.  What appeared to follow from the submission was that there was no evidence that Mr Johnston had resigned, hence there was no vacancy to fill and therefore Mr Dargavel’s appointment by State Council was ineffective.

70                  I am satisfied that Mr Johnston did resign as State Secretary with effect from 11.00am on 2 September 2002 and that communication of that resignation was delivered to, and accepted by, State Council prior to its appointment of Mr Dargavel.  Although the original of the letter was not produced in evidence, notwithstanding the service of a subpoena for its production, there was sufficient evidence which enables me to conclude that a letter of resignation by Mr Johnston was delivered to State Council and that the resignation was accepted by it.  A copy of the letter was produced in response to the subpoena.  Mr Dargavel gave evidence that as he was walking to the meeting of State Council with Mr Reid, Mr Reid showed him a copy of Mr Johnston’s letter of resignation which he scanned.  According to the draft minutes of the meeting of State Council on 2 September 2002, which have not been challenged, Mr Reid tabled Mr Johnston’s letter of resignation from the office of State Secretary with effect from 11.00am that day.  Mr Reid informed the meeting that as Mr Johnston had been prohibited by the National Council from attending the meeting, Mr Johnston had asked Mr Reid to deliver to the State President and the members of the State Council correspondence announcing his resignation.  Mr Reid told the meeting that the resignation had also been faxed to the National Secretary Mr Cameron and the Acting National Secretary Mr Harrison.  State Council then resolved to accept Mr Johnston’s resignation with effect from 11.00am that day.

71                  Mr Dargavel said that the draft minutes were an accurate record of what occurred in relation to Mr Johnston’s resignation and Mr Oliver, who was present at the meeting, said that a letter from Mr Johnston was tabled by Mr Reid.  The draft minutes also recorded that Ms Halfpenny read out Mr Johnston’s letter of resignation.  Mr Speight, the State President and Chairman of that meeting, said that Mr Reid tabled a letter of resignation as State Secretary from Mr Johnston and that the letter was given to the minute‑taker.

72                  I can see no reason why I should not accept the draft minutes as an accurate record of what occurred, notwithstanding the inability of the National Council now to produce the original letter of resignation.  The letter of resignation had also been sent to Mr Cameron and Mr Harrison by facsimile transmission and those letters were produced and tendered in evidence in response to a notice to produce. 

Was the meeting of State Council on 2 September 2002 a Special Meeting which required prior notice of the business to be transacted at the meeting to be given to all members of the State Council?

73                  The respondents submitted that the State Council meeting on 2 September 2002 was a Special Meeting for which prior notice of the business to be transacted was required.  Two issues arise for consideration, first, whether the meeting was a Special Meeting and secondly, whether, in any event, notice of the business to be transacted was required.

74                  I do not consider that the meeting of State Council was a Special Meeting.  The Rules do recognise that in some circumstances some meetings are to be characterised as “Special” meetings.  Such provisions are to be found in relation to National Conference in rr 5.1, 8.1(k) and 12 and in relation to State Conference in rr 24.1 and 26.2.  There are no provisions in the rules for “Special” meetings of State Council.  The Rules recognise that in some cases particular notice of the meeting needs to be given in advance of the meeting.  Such a case exists where a meeting is to be held by telephone hook up.  Rule 28.1 requires specific notice to be given one day prior to the meeting of the matters to be the subject of consideration by the meeting.

75                  Rule 26.1 which relates to meetings of State Council provides:

“The State Council shall meet quarterly and at such other times as the Council itself may decide or when decided by the State President and State Secretary or when requested by a majority of members of the State Council.”

76                  The rule does not differentiate between general and special meetings and does not require any particular notice to be given prior to any such meeting of State Council.  I am therefore satisfied that the meeting of State Council was not a “Special” meeting.  It was called pursuant to a request of a majority of members of State Council as was provided for by r 26.1.

Was the State Council resolution appointing Mr Dargavel as State Secretary invalid because notice of the proposal to fill the vacancy was not provided to all members of State Council prior to the meeting?

77                  Notwithstanding that the meeting was not a “Special” meeting, the question still arises whether notice should have been given prior to the meeting of any proposed resolution to appoint Mr Dargavel as State Secretary.  The respondents submitted that the meeting was not able to transact business of which notice had not been given and that the resolution appointing Mr Dargavel was therefore invalid and of no effect.  Mr Dargavel submitted that the authorities drew a distinction between prior notice of business to be transacted at general meetings of members of organisations and meetings of executive bodies of organisations.  He submitted that in the case of special general meetings of members prior notice of business to be transacted was required whereas such prior notice was not required in the case of special meetings of executive bodies.  It was submitted that the distinction was based upon the principle that the function of informative notice is to allow a decision to be made by a member as to whether or not the member ought to attend a meeting where the member is not required to attend the meeting.  It was said that in the case of a member of an executive body such as a committee of management, each member is under an obligation to attend, not to protect their own interests (which is the reason why members attend) but to make decisions for the good government of an organisation.  Mr Dargavel relied upon Campbell v Crawford (1986) 12 FCR 317 at 340‑341; Johnson v Beitseen (1991) 41 IR 395 at 416‑417 and Cummings v Macks (2000) 96 FCR 345. 

78                  The meeting of State Council was convened for the purpose of dealing with any business that could not be dealt with at the meeting which had been scheduled for 14 August 2002.  The agenda attached to the request for the meeting did not refer to the filling of the vacancy in the office of the Victorian State Secretary as that situation had not then arisen.  In any event that agenda did not accompany the notice of meeting sent to members of the State Council.  At the meeting of State Council the meeting resolved to adopt the agenda set out in [18] above.  The resolution to appoint Mr Dargavel only arose as a result of the acceptance by the State Council of Mr Johnston’s resignation when correspondence was dealt with.  Not all the members of State Council were present at the meeting, there being three apologies. 

79                  As a matter of principle, notice of the business to be transacted or considered at a meeting of members of an organisation or of a body of the organisation, whatever be the organisation and whatever by the body forming part of the organisation, should be given to the persons entitled to attend the meeting:  see generally Magner, Joske’s Law and Procedure at Meetings in Australia 8^th ed. 1994 Ch 3.  The purpose of such notice is two‑fold.  First, it is to give those entitled to attend but who are not obliged to attend, the opportunity to decide whether they want to attend.  Secondly, it is to give those entitled to attend, whether or not they are obliged to attend by virtue of a position or office which they occupy, an opportunity to consider their attitude to the matters proposed to be discussed at the meeting and whether they wish to prepare for the discussion.

80                  Of course if all the members of an organisation, or body within it, are present at a meeting of the organisation or body, any business may be transacted within the power of such a meeting even where no notice has been given of that business, if all the persons present consent to that business being brought forward.

81                  There have been a number of cases in which resolutions passed at meetings have been held to be invalid because inadequate notice of the business to be transacted or discussed was given to those persons entitled to attend the meeting.  Some of those cases involved meetings of members of industrial organisations which were special meetings or meetings called for a particular purpose:  Campbell v Higgins (1957) 3 FLR 317; McLure v Mitchell (1974) 24 FLR 115, per Joske J at 139‑140.

82                  Notwithstanding these decisions, the caselaw generally draws a distinction between meetings of persons who are not required to attend meetings and meetings of persons who are required to attend by virtue of the position which they occupy.  This distinction was recognised by Wilcox J in Campbell v Crawford (supra).  A meeting had been called of the Federal Council of the Plumbers and Gasfitters Employees’ Union of Australia in respect of which an agenda was circulated.  A resolution was passed at the meeting to abolish the Geelong Branch of the Union.  No notice of this resolution had been given to members of the Federal Council prior to the meeting.  Wilcox J held that notice of the proposed resolution did not have to be given to members of the Federal Council prior to the meeting.  Wilcox J said at 340:

“There is authority for the proposition that a notice summoning a meeting of members of a branch, in order to be valid, must sufficiently indicate the business intended to be transacted:  see Campbell v Higgins (1957) 3 FLR 317 at 327; Winter v McAdam (1957) 1 FLR 210 at 211; McLure v Mitchell (1974) 24 FLR 115 at 134. But these cases are distinguishable from the present.  As Evatt J pointed out in Cook v Crawford (1981) 52 FLR at 36, the reason for the rule is ‘to enable any member receiving it to determine in his own interest whether or not he ought attend the meeting’. This reason has little application to a meeting of a committee whose members are under an obligation to attend a summoned meeting, not to protect their own interests but to make decisions for the good government of the union.”

83                  A similar approach was taken by Gray J in Johnson v Beitseen (supra).  Gray J said at 417:

“Where a rule such as branch r 11 [which provided for the calling of Branch Management Committee meetings] makes provision for a meeting of a defined body such as the committee of management, it is ordinarily the duty of each member of that body to attend if notified of a meeting, or if a regular meeting specified in the rules is to be held.  No specific notice of the business to be discussed at any such meeting is required.  A member of the committee of management remains absent from a meeting at his or her peril.”

84                  In Cummings v Macks (supra) Drummond J (with whom Sundberg J agreed), in considering whether s 181 of the Bankruptcy Act 1966 (Cth) required notice of a motion to remove a trustee at a creditors’ meeting, recognised the distinction between notices convening meetings of members who were not obliged to attend the meeting and notices convening meetings of members of bodies who were duty‑bound to attend the meeting:  see 347‑348.  Drummond J cited Campbell v Crawford (supra) with approval, noting that the rule that members of the governing council of a municipal corporation were entitled to an opportunity to consider whether they would attend such meetings because they were duty‑bound to attend all of them had been applied to the governing bodies of other organisations such as trade unions. 

85                  I am satisfied that notice of the proposal to appoint Mr Dargavel as State Secretary did not have to be given to members of the State Council prior to the meeting held on 2 September 2002.

Was the State Council resolution appointing Mr Dargavel as State Secretary invalid because it was made for an improper purpose?

86                  The respondents submitted that State Council’s decision to appoint Mr Dargavel as State Secretary was not a bona fide decision made for a proper purpose.  It was not in issue that a power given to persons by the rules of an organisation must be exercised in good faith for the purpose for which the power was given and not for some ulterior or extraneous purpose:  Scott v Jess (1984) 3 FCR 263 at 269‑270, 287; Allen v Townsend (1977) 31 FLR 431 at 483‑486.

87                  There was a difficulty with this submission as the issue arises as to how one can determine when a decision which is the subject of a resolution passed by numerous persons is not made bona fide.  Is it necessary to attack the bona fides of each voting person?  This issue was considered by Dixon J in Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37.  Dixon J said at 82:

“But where purpose is not made expressly, or by necessary intendment, a condition of the exercise of the power, then it is necessary to consider the composition of the body, and, if it is a deliberative assembly, to distinguish between the motives actuating individual members and the purpose disclosed by the character and operation of the measure in relation to the actual facts and circumstances.  In In re the Mayor &c. of the City of Hawthorn; Ex parte Co-operative Brick Co. Ltd., speaking of a by‑law of an elective municipal council, Cussen J. said:  ‘So far as the question of bad faith is concerned, if it is meant by this that individual councillors were actuated by improper motives in giving their votes, I find no evidence of the fact, and even if there was, I find great difficulty in seeing how such a contention could be given effect to.  Each councillor may be actuated by many reasons, each having some different reasons from the others, and it seems to me almost, if not quite, impossible to penetrate into their minds.  It must at least be necessary to show that the improper motive was the sole or dominant one, and that but for it a majority would have voted against adopting the by‑law.”

88                  The issue was also considered by Gray J in Joyce v Christoffersen (1990) 26 FCR 261.  Gray J said at 295: 

“The difficulty of pursuing an attack on a decision of a deliberative body, based on the private motives of one or more of its members is apparent from a reading of Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37, especially at 82‑83 in the judgment of Dixon J as he then was.  If Mr Hauff were the only member of the body acting dishonestly or maliciously or by reason of an improper or ulterior motive, the decision would stand. It could only be overturned if it were shown that the Branch Executive as a whole was not exercising the power given by r 11(a)(i) of the Branch rules for the purpose for which it was given.  No such suggestion can be made here.”

89                  Members of State Council did not give evidence and were not examined as to their motivation in voting for the resolution to appoint Mr Dargavel as State Secretary.  In the absence of such evidence it is very difficult to see how the allegation of improper purpose can be made out.  The resolution is not on its face improper having regard to Mr Johnston’s resignation as State Secretary.

90                  The question arises whether the purpose alleged by the respondents to be an improper purpose is appropriately described as improper.  Part of the improper purpose claimed by the respondents was that the resolution intended to reinstate the effective control of the Victorian Branch with Mr Johnston.  The evidence falls far short of establishing that purpose, whether it be proper or improper.  Although there was evidence that Mr Johnston was seen on the premises occupied by the Victorian State Branch on the days following his resignation and although Mr Johnston delivered a letter containing a notice of a meeting of State Council on 11 September 2002 for Mr David Nunns, a member of State Council, by giving it personally to his partner at his home on 9 September 2002, the evidence is insufficient to support the proposition that Mr Dargavel was effectively a mouthpiece for Mr Johnston.  It may be that Mr Dargavel and Mr Johnston are factionally aligned with the Workers First faction but it does not follow that Mr Dargavel is solely a mouthpiece for Mr Johnston and that he does not and will not exercise an independent mind if he was able and authorised to carry out the duties of the Victorian State Secretary.

91                  I do not understand the submission that the State Council resolution was not passed for the purpose of making an appointment under r 4, Pt A.12(ac)(ii).  That rule was the precise rule expressed by the State Council resolution pursuant to which the resolution appointing Mr Dargavel was passed.  State Council was proceeding on the basis that there was a vacancy in the office of State Secretary and it was that vacancy which the State Council resolution was intended to fill.

92                  There is no doubt that State Council wanted to bring the appointment of the Administrator to an end.  The State Council resolution directing Mr Oliver to vacate the State Secretary’s office and hand over all records to Mr Dargavel is, in its terms, predicated on the fact that Mr Johnston’s suspension has ceased by reason of his resignation.  I have already found that the period of the appointment of the Administrator did not terminate upon Mr Johnston’s resignation from office.  The fact that the State Council and its members took a different view at the time of the passing of the resolutions on 2 September 2002 does not mean that the State Council and its members were not acting bona fide in passing the resolutions which they passed. 

93                  In any event I consider that it was not an improper purpose for the State Council to attempt to appoint a State Secretary in circumstances where that appointment would be effective to remove an Administrator from executive and administrative control of the state branch.  Whether the State Council was able to do so depended upon whether the relevant rules enabled the relevant resolution to be passed in the circumstances which existed on 2 September 2002.  The fact that the State Council resolution was not effective to achieve this result does not result in it being characterised as having been passed for an improper purpose.

Was Mr Dargavel eligible on 2 September 2002 to be appointed to the position of State Secretary?

94                  The respondents submitted that Mr Dargavel was ineligible for election to the office of State Secretary as he did not during the period of twelve months immediately preceding 2 September 2002 meet the eligibility criteria set out in r 4, A.4(b)(iii).  It was a requirement of r 4, Pt A.12(ac)(ii) that a person appointed be eligible for election to the office.

95                  Rule 4, Pt A.12(ac)(ii) enabled the State Council to appoint as State Secretary, “a member of the Union eligible for election to the office”.  A member is eligible for election to the office of State Secretary if the member satisfies the requirements of r 4, Pt A.4(b) which is in the following terms:

“A member may be nominated as a candidate under this sub‑rule if the member:-

(i)        has been a member for a continuous period of not less than 4 years immediately preceding the closing date for lodging nominations and, during the period of 12 months immediately preceding the closing date for lodging nominations was not unfinancial for a period longer than 3 months;

(ii)       is financial at the closing date for lodging nominations; and

(iii)      was, during the period of 12 months immediately preceding the closing date for lodging nominations:

(1)        employed as an employee in a trade or calling or branch thereof in or in connection with which the Union is registered;

(2)        unemployed on account of illness, incapacity or inability to obtain employment;

(3)        engaged in a full‑time office in the Union after having been elected or temporarily appointed thereto.  …”

(Emphasis added)

The expression “employed as an employee in a trade or calling or branch thereof” must be read in the light of the persons who fall within that description as defined in r 1A.  Rule 1A provides that the Union shall consist of persons “who are employed or usually employed in or in connection with the following trades or calling or branches thereof”.  A considerable number of trades and callings are then set out including, relevantly for present purposes:

(e)        Such other persons, whether employees in the industries associated with the constitution or not, who have been appointed officers of the Union and admitted as members thereof…”

Mr Dargavel had been appointed to the position of industrial officer in the Victorian office of the Union in February 1999 and had undertaken the work of an industrial officer from that time up to 2 September 2002.

96                  Mr Dargavel contended that he complied with the requirement that he be employed for the relevant period of twelve months “in a trade or calling or branch thereof in or in connection with which the Union is registered.”  The respondents submitted that Mr Dargavel did not satisfy this requirement as he was not an “officer” of the Union.

97                  The issue between the parties was whether Mr Dargavel, in his capacity as an industrial officer, was properly described as an appointed officer of the Union, the respondents submitting that he was not properly so described.

98                  The Rules recognise a distinction between elected officers or officials and appointed officers, who are salaried and appointed by National Council or State Council.

99                  This issue and distinction was considered by von Doussa J in In the Matter of an Election for an Office in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (von Doussa J, 12 October 1998, unreported) (“Curry’s case”).  In July 1996 Mr Curry was appointed to the full‑time position of “Administration Officer”, which was not a position expressly provided for in the rules, but which involved a range of administrative duties.  He was elected to the office of State President of the South Australian Branch of the Union.  The issue was whether he satisfied the requirement in a rule which was in identical terms to r 4, Pt A.4(b)(iii).

100               von Doussa J said at 6:

“In the present case the employment of Mr Curry as an Administration Officer within the Union was not employment in any of the industries specified in r 1, subr 2.  However the identity of the industries in respect of which an organisation is registered is not definitive of the eligibility of persons to be members of the organisation if the eligibility rules of the constitution of the organisation travel beyond the bounds of the specified industries. 

…

In the present case the eligibility requirements of r 1, subr 1A to subr 1L, are not predicated on employment in specified industries, but on employment in or in connection with specified ‘trades or calling or branches thereof’.  Included among the nominated callings are those of people ‘appointed officers of the Union and admitted as members thereof’ whether or not they are employed in the industries specified in r 1, subr 2.  Insofar as r 2, Pt A subr 4(b)(iii)(1) requires that a person eligible for election be an employee in a ‘trade or calling or branch thereof in or in connection with which the Union is registered’, in my opinion Mr Curry fulfilled that requirement if he came within the class of employees ‘who have been appointed officers of the Union’ within the meaning of r 1, subr 1A(e).”

His Honour observed that the notion of an “office” was used with different meanings in the rules and identified rules where the holder of the office was elected and rules where the holder of the officer was appointed as a salaried employee.  His Honour continued at 7:

“In the situations where the word ‘officer’ is used to refer to a salaried member of staff as opposed to an elected official, the word has a wider meaning than is ascribed to ‘office’ in s 4 of the Workplace Relations Act 1996.  It is well recognised that a word defined in s 4 does not necessarily carry the same meaning in the rules of the registered organisation:  see Re Inquiry into Election in Australian Builders’ Labourers Federation (1958) 3 FLR 405 at 408 and Landeryou v Taylor & Others (1969) 15 FLR 147 at 156.

The meaning to be ascribed to the word ‘officer’ in a particular rule or subrule must be ascertained having regard to the context in which the term is used.  In my opinion the word ‘officers’ in r 1, subr 1A(e) does not mean an elected official but refers to salaried officers.”

von Doussa J then addressed the issue whether a salaried employee was an “officer” of the Union for the purposes of r 1A(e) in the following terms (at 8):

“Whether a particular employee appointed to a salaried position within a union is fairly to be described as an ‘officer’ will depend upon matters of fact and degree, and falls to be determined according to the nature of the position and the duties which it carries:  see Landeryou v Taylor at 157‑158.  In the present case, the position of Administration Officer held by Mr Curry was one of considerable responsibility; indeed his duties constituted him an office manager who had charge of the day-to-day running of the Union.  Insofar as Mr Curry’s eligibility turns on the characterisation of his position as an ‘office’ so that he can fairly be described as a ‘salaried officer’ the facts clearly establish that he fulfilled that requirement.”

101               The significance of this decision is that von Doussa J was construing rules identical to the Rules presently before the court and reached the conclusion that a person appointed by a Union to undertake significant administrative responsibilities was properly characterised as an “officer” of the Union.  His Honour’s conclusion was that the expression “… employees … who have been appointed officers of the Union” was not apt to describe a person who had been elected as an officer.

102               Mr Dargavel’s tasks and duties involved him in the assumption of significant responsibilities.  In particular he represented the Union at hearings before the Australian Industrial Relations Commission and prepared proposed budgets for the Victorian Branch.  It follows from the reasoning in Curry’s case that Mr Dargavel complied with the eligibility criteria in r 4, Pt A.4(b)(iii).

103               The respondents submitted that notwithstanding the decision in Curry’s case, Mr Dargavel was not properly characterised as an “officer” according to common law principles and that he was nevertheless ineligible in accordance with the reasoning of Branson J in Fohmsbee v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (1999) 88 IR 237 which involved an election inquiry.  Ms Perkins was elected to the office of Organiser in the Printing Division – New South Wales Branch.  Her eligibility depended upon her satisfying the requirements of r 49.33, the equivalent rule in the current Rules of the Union being r 54.33.  Under that rule Ms Perkins had to be a financial member of the Printing Division and, relevantly, to have been appointed as an officer of the Union.

104               Branson J held that in the relevant rule, r 2(2)(b), the reference to “officers” in the expression “… persons … as have been appointed officers of the Union” meant a salaried officer and not an elected officer.  That rule was similar in its terms to r 1A(e) in the present case although the rule is structured differently.  Her Honour found that, having regard to her duties as a recruitment officer, Ms Perkins had been appointed as an officer of the Union within the meaning of r 2(2)(b).  Branson J said at 246:

“I accept Ms Perkins’ evidence that while she was employed as a recruitment officer in the of the PKIU‑NSW Branch [sic] she identified potential sources of membership and formulated strategies for recruiting new PKIU members, dealt with inquiries from prospective members, recruited new members and collected union dues.  I find that she also performed some functions ordinarily the responsibility of an elected organiser.  I note that following the Amalgamation, the Union’s Quarterly Report for April‑June 1997 listed its recruitment officers, including Ms Perkins, as officers of the Union.  I also note that Ms Perkins was provided by the Union with a business card which identified her as an officer of the Union.”

However Branson J found that Ms Perkins had not in fact been lawfully admitted as a member of the Printing Division of the Union at the time she was appointed recruitment officer and had not made any application thereafter to become a member.  Nevertheless her Honour found that an earlier application for membership by Ms Perkins when she had been ineligible for membership, but which had been accepted and where Ms Perkins had been admitted to membership, had been validated as a result of the operation of s 256 of the Act.

105               Branson J then considered whether Ms Perkins fell within the requirement of r 49.33(a)(iv)A which is in the following terms:

“The election shall be conducted in accordance with the provisions of Part A of Rule 2 of these Rules provided always that:

(a)       A nominee must be nominated by a person who is at the closing date for lodging nominations a financial member of the Union and –

(i)         …

(ii)        …

(iii)       …

(iv)       have been, during the period of 12 months immediately preceding the closing date for lodging nominations:

A.                 employed as an employee in a trade or calling or branch thereof or in connection with which the Union is registered;

B.                  unemployed on account of illness, incapacity or inability to obtain employment; or

C.        engaged in a full‑time office of the Union after having been elected or temporarily appointed thereto.”

Branson J noted that it had been agreed before her that r 49.33(a)(iv)A should be construed as though it read:

“employed as an employee in a trade or calling or branch thereof or in connection with which the Union is registered”.

It should be noted that this rule, and its present equivalent in the rules, r 54.33(a)(iv)A, is a different rule from the rule considered and construed by von Doussa J in Curry’s case.  The rule considered in Curry’s case, now r 1A(e), provided that the Union shall consist of persons:

“who are employed or usually employed in or in connection with the following trades or calling or branches thereof:

(a)       …

…

(e)        Such other persons, whether employees in the industries associated with the constitution or not, who have been appointed officers of the Union and admitted as members thereof or whilst financial members of the Union have been elected as fulltime representatives of any working class organisation to which the Union is affiliated, or as a working class member of Parliament, or as a fulltime representative of any Government Tribunal or Board, in the interests of the Union or Unions.

Together with such trades as may be represented by trade unions hereafter amalgamating with the Union.”

(Emphasis added)

106               The rule which Branson J was considering, r 2(2) of the Printing and Kindred Industries Union Rules, related to eligibility for membership of the Printing Division of the Union and was in substantially the same form as the present r 1H.  Rule 2(2) was in the following terms:

“The Union shall consist of an unlimited number of persons … who are employed or whose usual occupation is that of an employee in or in connection with:

(a)       any business, trade, manufacture, undertaking, calling, service, employment, handicraft or industrial occupation or a vocation … in the printing industry or a kindred industry …; and

(b)       … The Union shall also consist of such other persons, whether employees in the foregoing industries or industrial pursuits or not, as have been appointed officers of the Union and admitted as members thereof.”

107               The significant difference between the rules under consideration by von Doussa J and Branson J is that in the former case the classifications or trades are preceded by the words “employed or usually employed in or in connection with the following trades or calling or branch thereof …”.  In the latter case the classifications or trades are preceded by the words “employed or whose usual occupation is that of an employee in or in connection with …”

108               Although Branson J construed r 49.33(a)(iv)A in the manner referred to in par [105] above, her Honour was not called upon to construe and did not construe the rule in accordance with the opening words in what is now r 1A (par [105] above).

109               Branson J concluded that Ms Perkins was not “employed as an employee in a trade or calling or branch thereof in or in connection with which the Union is registered”.  Her Honour reasoned at 256:

“It seems to me that r 49.33(a)(iv) read as a whole must be understood as being intended to achieve more than merely ensuring that a nominee for election has been a member of the Union during the period of 12 months immediately preceding the closing date for lodging nominations.  So much is achieved by the preceding paragraphs of the rule.  I accept the submission of the Union that the intention disclosed by r 49.33(a)(iv)A and B is to exclude from those otherwise qualified to be nominated for election persons who did not during the preceding 12 months work in a capacity in which the Union was able to represent them industrially – unless they were unable to obtain such work by reason of illness, incapacity or inability to obtain employment.  That is, I accept that r 49.33(a)(iv)A reflects a distinction, which may also be seen in s 132 of the Conciliation and Arbitration Act, between employees in or in connection with an industry and other persons entitled to be members of the association.  Such a construction of r 49.33(a)(iv) fits harmoniously with r 2.2 of the PKIU Rules, which is set out above, and also with r 1H(a)(ii) of the Union Rules which reflects the terms of r 2.2 of the former PKIU Rules.”

I consider that I should follow the reasoning of von Doussa J in Curry’s case and distinguish the reasoning of Branson J having regard to the different rules which were the subject of consideration in each case.  It follows that I am satisfied that on 2 September 2002 Mr Dargavel satisfied the eligibility requirement in r 4, Pt A.4(b)(iii)(1).  The calling in which he was employed was the calling identified in r 1A(e), namely he had been appointed an officer of the Union.

110               I do not accept that Mr Dargavel was not an officer according to common law notions of what is contemplated by the appellation “officer” at the time of his appointment as State Secretary.  In Landeryou v Taylor (1969) 15 FLR 147, the majority of the Court (Dunphy and Joske JJ) held that a dues collector was an “officer” for the purpose of the relevant rules.  The majority held (at 154) that an office “must carry with it some administrative or executive duties or some substantial degree of responsibility”.  Their Honours found that the position was of considerable importance to the union albeit that it was a position not provided for in the rules:  see also Ransley v Australian Public Service Association (Fourth Division Officers) Tasmanian Branch (1985) 12 IR 55 at 65‑66.

111               The respondents submitted that the position of industrial officer occupied by Mr Dargavel did not constitute him an officer consistently with the approach taken by the majority in Landeryou v Taylor (supra).  I do not accept that submission.  Mr Dargavel’s duties were of considerable importance for the Union and he undertook administrative and executive duties and assumed considerable responsibility.  He represented the Union in a number of matters in the Australian Industrial Relations Commission involving industrial disputes and applications pursuant to ss 127 and 166A of the Act.  He was asked to prepare proposed budgets for the Victorian Branch and had a regular dialogue with the National Finance Officer.  In a number of respects Mr Dargavel represented the Union and in particular, the Victorian Branch.  I am satisfied that he was properly described as an officer of the Union, and accordingly, that he was eligible to be appointed as State Secretary.

Can the appointment of the Administrator and Mr Dargavel be valid and effective at the same time?

112               For the reasons to which I have referred above the resolutions of the National Council on 31 July and 13 August 2002 precluded State Council from appointing a State Secretary during the period of the direction National Council had given to Mr Johnston with the result that Mr Dargavel’s appointment as State Secretary was not valid or effective.  However, once the period of that direction has elapsed different considerations arise.  The appointment of the Administrator and the consequential resolutions restricting the actions and conduct of State Council were predicated upon the fact that charges had been laid, and were as yet unresolved, against the incumbent State Secretary.  The appointment of the Administrator and the consequential resolutions restricting the actions and conduct of State Council were expressed in the resolution of 9 July, 31 July and 13 August 2002 to be implemented “having regard to the extraordinary situation which exists in the Victorian Branch”.  I am satisfied that the reference in the resolutions to “the extraordinary situation” was a reference to the situation which had arisen as a result of the two charges laid against the State Secretary Mr Johnston, his suspension from performing the duties of State Secretary pursuant to the Rules, the fact that there was no vacancy in the office of State Secretary for the purposes of the Rules and the fact that there was no main executive and administrative officer of the State branch, as provided by the Rules, to administer the State branch.  The relevant motions which were put and which resulted in the resolutions were significantly related to the charges laid against Mr Johnston and the consequences which followed from the laying of those charges.

113               While the period of time provided for in the resolutions of 31 July and 13 August 2002 remained extant the appointment of Mr Dargavel as State Secretary could not be valid or effective.  However, once the period of the direction provided for in these resolutions elapsed the situation was that the factual substratum upon which those resolutions were predicated no longer existed.  There was not a situation of an incumbent State Secretary who was the subject of charges laid against him, which were as yet undetermined, and in respect of whom there was a direction pursuant to r 13.14 directing him not to carry out the duties of the office of State Secretary.  In such circumstances, it would be open to the State Council after the period of the direction terminated to appoint a member of the Union to the office of State Secretary pending the election to fill a vacancy in accordance with r 4, Pt A.12(ac)(i) unless there was some other basis upon which, and by virtue of which, the National Council might appoint an Administrator of the Victorian Branch and pass consequential resolutions restricting the powers of State Council in terms similar to those passed on 9 July, 31 July and 13 August 2002.

114               The resolutions passed on 9 July, 31 July and 13 August 2002 by National Council could not prevent a vacancy occurring in the office of State Secretary once Mr Johnston resigned from that office.  The only effect of the resolutions was to preclude an appointment to the office of State Secretary to fill the vacancy during the period of the direction to Mr Johnston not to carry out his duties as State Secretary. 

Is the Court empowered in a proceeding brought pursuant to s 209 of the Act to answer the question whether Mr Dargavel was validly appointed as State Secretary by State Council on 2 September 2002, as a basis for refusing relief?

115               Mr Dargavel submitted that I could not find that he was not validly appointed State Secretary by State Council on 2 September 2002 and, for that reason, discharge the rule to show cause made on 4 September 2002.

116               Section 209(6) of the Act provides:

“An order shall not be made under this section that would have the effect of treating as invalid an election to an office in an organisation or a step in relation to such an election.”

This provision becomes relevant in the present proceeding by virtue of s 200(3) of the Act which provides:

“Where, under rules made under subsection (1), a vacancy in an office in an organisation is filled otherwise than by an ordinary election, the person filling the vacancy shall be taken, for the purpose of the relevant provisions, to have been elected to the office under the relevant provision.”

The expression “relevant provisions” is defined in s 200(5) of the Act as meaning, in relation to an organisation:

“(a)     the provisions of this Act (other than this section); and

 (b)      the rules of the organisation (other than rules made under subsection (1)) providing for the filling of a casual vacancy in an office otherwise than by an ordinary election;”

117               Mr Dargavel submitted that as s 200(3) provided that he was to be taken, by virtue of his appointment as State Secretary pursuant to the Rules, to have been elected to the office of State Secretary, that I could not make a finding that he had not been validly appointed as State Secretary and by reason of that finding discharge the rule to show cause made on 4 September 2002.

118               The Court does not have jurisdiction to make an order that has the consequence or effect of treating an election to an office in an organisation as invalid in a proceeding brought pursuant to s 209 of the Act.  Any such order invalidating an election to an office should only be made in proceedings brought for an inquiry into an election under Div 5 of Pt IX of the Act, namely s 218 and following sections.

119               Mr Dargavel has not “filled” the vacancy, but has rather been appointed to the position for a limited period pending the “filling” of the vacancy by an election to be conducted in accordance with r 4, Pt A.12(ac)(i).  Mr Dargavel’s appointment is made “pending the declaration of the result of the election” to fill the vacancy in the office.

120               For the purposes of ss 200(1) and (3) the filling of the casual vacancy in the office of State Secretary will occur in accordance with r 4, Pt A.12(ac)(i), not r 4, Pt A.12(ac)(ii).  Under the latter provision an interim or holding position is put in place but the casual vacancy is not “filled”.  In particular, the person appointed to the position does not fill the vacancy for the unexpired period of the holding of the position but only until the declaration of the result of the election.  Put shortly, the election under r 4, Pt A.12(ac)(i), not the appointment under r 4, Pt A.12(ac)(ii), fills the casual vacancy.  Therefore it is open to the Court to consider, as I have done, whether Mr Dargavel was validly appointed as State Secretary and whether the rule to show cause should be discharged as a consequence of such consideration.

Have members of the National Council obstructed Mr Dargavel in the course of his duties and refused to recognise him as Victorian State Secretary

121               It was not in issue that Mr Dargavel had been inhibited in carrying out activities as State Secretary and has had difficulties in organising the staff in the State office as a result of actions of the Administrator and National officers.  These difficulties arose because the National Council did not recognise Mr Dargavel’s right as State Secretary to carry out executive and administrative activities in relation to the State branch.  However, as I have found that Mr Dargavel has not been validly appointed as State Secretary and that the Administrator is in executive and administrative control of the Victorian State Branch, it follows that Mr Dargavel cannot complain about the actions and activities of the Administrator and National officers in relation to the activities he has been undertaking and their refusal to recognise him as Victorian State Secretary. 

122               The Administrator and the National Council were entitled to proceed on the basis that the resolutions passed on 31 July and 13 August 2002 were valid and effective.  These resolutions precluded Mr Dargavel and the State Council from acting in a manner, or passing resolutions, inconsistent with or contrary to, any decision of the Administrator concerning the management of the staff, officers or officials of the Victorian Branch or the allocation of their work unless the matter had first been referred to the National Council for its consideration. 

Does the National Council have the power under the Rules to remove Mr Dargavel or otherwise nullify his appointment as State Secretary in the manner set out in the proposed resolution circulated to members of the National Council on 4 September 2002?

123               As Mr Dargavel has not been validly appointed as State Secretary the question does not arise whether the National Council has the power to remove him or otherwise nullify his appointment.

Does the National Council have the power to suspend the operation of the Victorian State Council in the terms contained in the resolution circulated to members of the National Council on 4 September 2002

124               It was accepted in final submissions by the respondents that National Council did not have the power to pass a resolution suspending the operations of the Victorian State Council in the terms of par (iii)(8) of the resolution circulated to members of the National Council on 4 September 2002 (par [28] above).

125               However it is still necessary to address the proposed resolutions which would have the effect of continuing the appointment of Mr Oliver as Administrator to 30 June 2003.  Paragraph 4 of the amended rule to show cause raises for consideration the power of the National Council to pass the proposed resolutions.

126               I have already found that the National Council was empowered to appoint an Administrator of the Victorian State Branch because of the suspension of Mr Johnston from his duties as State Secretary pending the hearing of the charges laid against him.  That power fell within r 8.1 as an incident or consequence of the exercise of the power in r 13.14 to suspend an office‑holder from duties when charges were pending against the office‑holder.  The Rules were silent as to what was to occur in relation to the administration of a state branch when the State Secretary was suspended from duties.  Such suspension does not result in a vacancy in the office so that r 4, Pt A.12(ac) is not enlivened.  It is for that reason that the exercise of the power of National Council to appoint an Administrator for the period during which the charges are unresolved and the position of State Secretary is not vacant does not conflict or compete with a similar power expressly committed to, or reserved for, the State Council.

127               Since 2 September 2002 there has been a vacancy in the office of State Secretary of the Victorian Branch.  The State Council was precluded until 16 September 2002 from appointing a person to that position pursuant to r 4, Pt A.12(ac)(ii) by reason of the resolutions of National Council which were operative and effective up to 16 September 2002.  Since 16 September 2002, the expiration of the period of the direction pursuant to the resolutions of National Council of 9 July, 31 July and 13 August 2002, there has been a vacancy in the office of State Secretary which it is open to the State Council to fill.

128               Rule 8.1 is wide enough in its scope to empower the National Council to appoint an Administrator of a State branch in the circumstances which existed on 9 July, 31 July and 13 August 2002.  As the combination of all those circumstances no longer exists the continued or further appointment of Mr Oliver as Administrator of the Victorian State branch by the National Council cannot be predicated upon the suspension of Mr Johnston from his duties as State Secretary.

129               Whether the continued or further appointment of Mr Oliver as Administrator of the Victorian State Branch by the National Council after 16 September 2002, and the passing by National Council of consequential resolutions restricting the powers of State Council in terms similar to those passed on 9 July, 31 July and 13 August 2002, may be warranted on other grounds, that is grounds other than the pending charges against Mr Johnston and his suspension from duties as State Secretary, is not a matter which falls for determination in this proceeding.

130               I will give the parties the opportunity to make submissions as to the orders which should be made in the light of these reasons.

Associate:

Dated:              4 October 2002

SCHEDULE

D CAMERON                                                                                 First Respondent

D OLIVER                                                                                      Second Respondent

D HARRISON                                                                                Third Respondent

J ROE                                                                                              Fourth Respondent

J DOWELL                                                                                     Fifth Respondent

I JONES                                                                                          Sixth Respondent

M NICOLAIDES                                                                            Seventh Respondent

S WALSH                                                                                       Eighth Respondent

A PERKINS                                                                                    Ninth Respondent

A DONNELLAN                                                                            Tenth Respondent

P JOHNSTON                                                                                Eleventh Respondent

D SMITH                                                                                        Twelfth Respondent

P LEES                                                                                            Thirteenth Respondent

G WILSON                                                                                     Fourteenth Respondent

P BASTIAN                                                                                    Fifteenth Respondent

G HINGLE                                                                                      Sixteenth Respondent

J PARKIN                                                                                       Seventeenth Respondent

J REID                                                                                             Eighteenth Respondent

P WISNIEWSKI                                                                             Nineteenth Respondent

J WATSON                                                                                     Twentieth Respondent

J FERGUSON                                                                                 Twenty-first Respondent

D SARGENT                                                                                   Twenty-second Respondent