FEDERAL COURT OF AUSTRALIA

Cosgrove v Donnelly [2008] FCA 1538

JOHN COSGROVE and OTHERS v CHARLES DONNELLY and OTHERS

NSD 1586 of 2006

COWDROY J

15 OCTOBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The 1st to 41st Respondents and each of them be restrained from taking any action or any further action in relation to the resolution passed on 2 October 2008 by the National Council of the 42nd Respondent until further order of the Court.

2.                  The 1st to 41st Respondents and each of them be restrained from conducting any referendum of the members of the 42nd Respondent in accordance with the resolution passed on 2 October 2008 by the National Council of the 42nd Respondent until further order of the Court.

3.                  The hearing of the application be fixed for 13 and 14 November 2008 commencing at 10:15 am.

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

REASONS FOR JUDGMENT

FACTS

1                     On 10 October 2008 Justice Moore granted an order nisi in the proceedings and adjourned the application until today.

2                     The applicants now seek an interim injunction restraining the respondents and each of them from taking any action or any further action in relation to a resolution that was passed on 2 October 2008 by the National Council of the 42nd respondent, namely the National Union of Workers (‘the NUW’).

3                     The NUW is an organisation of employees registered pursuant to Schedule 1 to the Workplace Relations Act 1996 (Cth) (‘the Act’).

4                     The NUW has separate branches in Queensland, South Australia, Western Australia, New South Wales and Victoria. Pursuant to rule 37 of the Rules of the NUW (‘the Rules’) membership is allocated to its branches. All of the branches of the NUW, with the exception of a Central Branch, are geographically based. The Central Branch, which is regulated by part 1 of rule 37 of the Rules, comprises of persons who are employed as foremen and supervisors in certain parts of the Commonwealth Public Service. The Central Branch may also include members of the NUW allocated to it by the National Committee of Management (‘the NCOM’) and members of the NUW who are employed in Tasmania and the Northern Territory.

5                     Each of the State based branches maintain an office (rule 36) and control their own property and assets (rule 34). Through their respective Branch Secretaries and Branch Committees of Management, branches have autonomy over matters within their own State (rules 44 and 37A).

6                     The National Council of the NUW comprises the General Secretary, the General President, the General Vice Presidents, the Assistant General Secretary and delegates representing the branches (rule 7).

7                     The NCOM is comprised of the General Secretary, the General President, the General Vice Presidents, the Assistant General Secretary and each Branch Secretary who is not already a member of the NCOM by virtue of holding office as a General President or General Vice President (rule 28).

8                     The applicants are members of the NUW. The 1st applicant is the Branch Secretary of the Queensland Branch of the NUW and a member of the National Council and the NCOM. The 2nd applicant is the Branch Secretary of the South Australia Branch of the NUW and a member of the National Council and the NCOM. The 3rd applicant is the Branch Secretary of the Western Australia Branch of the NUW and a member of the NCOM. The 4th applicant is the Branch Assistant Secretary of the Western Australia Branch of the NUW and a National Council member. The 5th applicant is the Branch Secretary of the New South Wales Branch of the NUW and a member of the National Council and the NCOM. The 6th applicant is an elected organiser of the Queensland Branch of the NUW and the 7th applicant is an elected organiser of the Queensland Branch of the NUW and a National Council member.

9                     The 1st to 40th respondents are members of the National Council of the NUW. The 1st respondent is the General Secretary, the 2nd respondent is the Assistant General Secretary, the 3rd respondent is the General President, and the 4th to 8th respondents are General Vice Presidents of the NUW. The 41st respondent is the General Returning Officer of the NUW and an employee of the Australian Electoral Commission.

10                  On or about 1 September 2008 the NCOM met in Melbourne. Following the conclusion of the meeting the 1st and 2nd applicants were invited by the 1st, 2nd and 3rd respondents to attend an informal meeting to discuss issues relating to the structure of the NUW. During the meeting the 1st respondent prepared a diagram proposing a new structure of the NUW. In summary, it was proposed that the Central Branch be restructured to include the Queensland, South Australia and Western Australia branches of the NUW (‘the proposed restructure’).

11                  On or about 24 September 2008 a Special Meeting of the South Australia Branch Committee of Management rejected the proposed restructure.

12                  The NUW’s biennial National Council meeting was held in Melbourne on 1 and 2 October 2008. Present were the 1st, 2nd, 4th, 5th and 7th applicants. Also present were the 1st to 40th respondents in their capacity as delegates to the National Council. The National Council delegates had been provided with an agenda for the meeting on or about 15 September 2008 but had not been provided with any other information.

13                  On 1 October 2008, prior to the commencement of the National Council meeting, a meeting of the NCOM was held at 9:00 am. No mention was made at such meeting of the proposed restructure.

14                  At the commencement of the National Council meeting at 10:00 am on 1 October 2008 the delegates were provided with a folder which included a paper entitled ‘NUW RESTRUCTURE – A Union for the Future’. No discussion occurred concerning the document during such meeting.

15                  On 2 October 2008 the National Council reconvened at 9:00 am. The 1st respondent then provided a verbal report in relation to the proposed restructure. Following the reading of the report a resolution for the proposed restructure was provided to the delegates. The critical portion of the resolution provided:

To submit, pursuant to Rule 46(A)(c)(ii), the attached proposal (“Proposed New NUW Structure”) to a national postal referendum of financial members of the union as soon as practicable.

16                  Approximately 45 minutes were allowed for the delegates to consider the resolution. Upon the resumption of the meeting several delegates spoke against the resolution. The resolution was then put to a vote and was carried by 26 votes in favour to 18 against. The motion was supported by all of the delegates representing the Victoria and Central branches and the 1st and 2nd respondents and was opposed by all of the delegates representing the New South Wales, Queensland, South Australia and Western Australia branches.

17                  On 2 October 2008 each of the Branch Secretaries of the NUW was sent correspondence by the 2nd respondent relating to the proposed referendum arising from the motion passed by the National Council. Thereafter correspondence has ensued between the parties, but no agreement has been reached concerning the proposed restructure.

THE PRESENT CLAIM

18                  The applicants seek interim relief preventing the mailing of envelopes for the ballot. Mr Kenzie QC, for the applicants, bases the applicants’ claim for relief essentially upon three grounds.

19                  Firstly, Mr Kenzie submits that there has been a breach of rule 46 of the Rules relating to the holding of a referendum. Mr Bromberg SC, for the 1st to 6th respondents and the 9th to 28th respondents, acknowledges that rule 46(D) of the Rules applies to referenda relating to the disbanding of branches. However, he submits that the operation of rule 46(D) of the Rules is predicated upon action under rule 8(A)(e) of the Rules. Mr Bromberg submits that such rule has not yet been invoked by the National Council. Accordingly, there has been no breach of rule 46 of the Rules.

20                  Secondly, Mr Kenzie submits that the National Council has no power under rule 46(A) to specify material which will accompany the mail out of the ballot papers and submits that such activity would usurp the function of the General Returning Officer and of his duties under rule 46(C) of the Rules. Mr Bromberg responds that the National Council does have power under rule 46(A)(a) and (c)(ii) of the Rules and that the provisions of rule 46(C) are purely mechanical and do not operate to restrict the National Council in the material which it seeks to bring to the attention of its members.

21                  Thirdly, Mr Kenzie submits that the information proposed to be forwarded to the members is inaccurate and misleading in relation to the elected office bearers in the Western Australia Branch. Mr Bromberg acknowledges that there is an error contained in such material but submits that such discrepancy is of no real consequence.

FINDINGS

22                  The only issue for the Court to determine is whether the evidence now before the Court justifies the granting of the interim injunction. The principles governing the grant of such relief require the Court to consider whether there is a serious question to be tried; whether, if an injunction is not granted, irreparable injury would occur for which damages would not be an adequate remedy; and whether the balance of convenience favours the granting of an injunction: see Castlemaine Tooheys Limited and Others v The State of South Australia (1986) 161 CLR 148 at 153.

23                  The interpretation of the Rules of the NUW is clearly in dispute, and it could not be said that the arguments for the applicants and the respondents do not lack substance. Such interpretation will determine two of the three claims raised by the applicants in the proceedings. The third matter raised by the applicants is a factual issue, the consequences of which could be of significance. Accordingly, the Court is satisfied that the arguments have established that there are serious questions to be tried.

24                  The respondents submit that, upon the balance of convenience, the Court should not grant an injunction. They emphasise the work undertaken to date regarding the proposed restructure and the work now being undertaken by the officials of the NUW.

25                  The Court notes that as at 1 September 2008 there had been no formulation of the proposed amendments to the Rules of the kind now being considered and that it was not until 2 October 2008 that any proposal in writing was submitted to the applicants. Accordingly, the proposed amendments are of very recent formulation. If implemented, they will have far reaching consequences in relation to the structure and operation of the NUW. It is important therefore that any such amendments be validly executed. For these reasons the Court considers that the activity being engaged in by the officials does not outweigh the need to ensure that correct procedures have been followed by the NUW.

26                  The respondents submit that the Court should not grant interim relief in view of the provisions of s 164(3) of Schedule 1 to the Act. Such section permits the Court to refuse to deal with an application unless it is satisfied that an applicant has taken ‘all reasonable steps’ to try to have the matter resolved within the organisation.

27                  The Court has been informed that settlement negotiations have taken place but were unsuccessful. The Court is satisfied that all reasonable steps have been taken by the applicants.

28                  Whether the Court should grant relief is a matter entirely in its discretion. In this instance the Court is satisfied that relief should be granted at this stage of the proceedings. The proposal suggested by the respondents, namely that the ballot proceed but the results not be made public, is fraught with difficulty and potential injustice.

29                  For these reasons the Court is satisfied that an interlocutory injunction should be granted as sought.

Associate:

Dated:         15 October 2008