Federal Court of Australia

Noonan v Kelly [2021] FCA 182

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 10.24 of the Federal Court Rules 2011 (Cth), service of:

(a)    the application for leave to appeal dated 26 February 2021;

(b)    the proposed notice of appeal dated 26 February 2021;

(c)    the amended application for leave to appeal dated 27 February 2021;

(d)    the corrected proposed notice of appeal dated 27 February 2021;

(e)    the affidavit of J Faine dated 26 February 2021;

(f)    the affidavit of J Faine dated 27 February 2021;

(g)    the affidavit of D Murphy dated 1 March 2021

      upon the fifth respondent be taken to have been effected by their being emailed a copy of those documents.

2.    The respondents file the affidavit of Mr Phillip Pasfield affirmed 24 February 2021 upon which they sought to rely.

3.    The application for leave to appeal be dismissed.

4.    The application for a stay of order 3 of the Court’s orders made on 26 February 2021 be refused.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

1    This application, and the proceedings which give rise to it, concern an ongoing dispute between two Divisions of the Construction, Forestry, Maritime, Mining and Energy Union; namely the Construction and General Division and the Mining and Energy Division. It is the latest iteration of arguments between the two Divisions over the eligibility rules for the membership of each Division. Different eligibility arguments were also the subject of a recent Full Court appeal, in O’Connor v Setka [2020] FCAFC 195. It is fair to say the hostility between the Divisions has escalated, and it is now at the point where Mining and Energy was scheduled to (and did) consider at its annual conference, which commenced on 1 March 2021, whether to resolve to withdraw from the Union, and apply to the Fair Work Commission for status as a registered organisation of its own. The arguments about eligibility for membership play an apparently significant role in the broader breakdown between the Divisions.

2    By an originating application filed on 24 February 2021, the present first respondent (Mr Grahame Kelly) applied for relief pursuant to s 164 of the Fair Work (Registered Organisations) Act 2009 (Cth). In substance Mr Kelly, and the other named applicants, sought a series of orders under s 164 relating to what they alleged was Mr Noonan’s unlawful conduct in acting as if he were the National Assistant Secretary of the Union, or as if he were the Acting National Secretary of the Union, neither office being one the applicants alleged Mr Noonan occupied under the Rules of the Union. Those allegations can be put to one side as they were not the basis for any orders of this Court, and formed no part of the arguments before me.

3    However, the applicants also alleged in their originating application that Mr Noonan, and the National Executive of the Union, proposed to embark on an unlawful course of conduct in considering, and making a decision on, a dispute notified by Construction and General to the National Executive about an alleged overlap in membership eligibility for workers, as between Mining and Energy and Construction and General.

4    By way of interlocutory relief, the applicants sought orders in effect restraining:

(a)    the convening of a meeting of the Union’s National Executive that was scheduled for Friday, 26 February 2021;

(b)    any consideration or determination at that meeting of a resolution by the Construction and General Division (or consideration of the membership dispute underlying the resolution); and

(c)    Mr Noonan from assuming, or continuing to assume, the functions of the office of Union Secretary (or Acting Secretary), or purporting to be performing those functions.

5    The matter was dealt with at the request of Mr Kelly and the other applicants as a matter of urgency, and came before a duty Judge on 25 February 2021. On 26 February 2021, the Court pronounced orders on Mr Kelly’s application. In substance the Court granted an injunction to the effect of (b) above, and ordered:

Pursuant to s 164(4) of the Fair Work (Registered Organisations) Act 2009 (Cth), the respondents are directed to refrain from determining, or in any other way resolving or settling—whether by resolution or otherwise—the C & G Dispute at the National Executive Meeting.

6    The application for interlocutory relief was otherwise dismissed, and the matter was adjourned to a case management hearing. The Court gave what were, in the circumstances, lengthy and detailed reasons. The fact that they were prepared and published in such a short period of time must, I consider, be taken into account when reading the reasons, so that they are to be read fairly in the context in which they were prepared and published.

7    The effect of the interlocutory injunction was that the National Executive could not meet on 26 February 2021 as planned, in order to resolve the dispute notified to it by Construction and General.

8    Late in the afternoon of 26 February 2021, Mr Noonan and the other applicants in the present proceeding filed and served an application for leave to appeal from the Court’s orders. In that application they also sought urgent interlocutory relief staying the injunction that had been granted. There was no dispute that the reason the stay was sought was so that the National Executive could meet on Sunday 28 February 2021, consider the Construction and General dispute notification, and rule on it in a way which the National Executive considered would bind both Construction and General and Mining and Energy. Mr Noonan and the other applicants on behalf of the National Executive, contended it was critical the National Executive be able to resolve the dispute before Mining and Energy made an application to the Commission for a secret ballot to enable it, if the ballot was successful, to be separately registered as a new organisation under the Registered Organisations Act. It was critical, the applicants contended, because of the particular effect of parts of s 95A of the Registered Organisations Act, which turned on (it was said) a situation existing before any application for a secret ballot under s 94 of the Registered Organisations Act is made.

9    The application for leave to appeal seeks to challenge the primary judge’s findings at [50], [52], [61] and [62] of its reasons, in light of the conclusion at [48] of the reasons (which needs to be reproduced with [47] and [49]):

The applicant’s case for interim relief proceeds upon the assumption that the members of the Union’s National Executive—a majority of whom are, it will be recalled, aligned with its C & G division—will inevitably resolve as paragraph 4 of the C & G Resolution invites them to: in other words, that they will vote to “resolve the Dispute” on the basis set out in that paragraph. The applicant says that, if that occurs, it will result in a situation in which members are allocated to divisions otherwise than in accordance with the Union Rules.

There are, of course, some unknowns inherent in that submission. Whether or not the members of the Union’s National Executive will in fact vote to “resolve the Dispute” in the way that the C & G Resolution urges is one of them. The applicant’s suspicion that they will is just that: a suspicion. For all that anybody can tell, the National Executive might well, at the meeting of Friday, 26 February 2021, be open to persuasion that the dispute ought not to be resolved in the manner that the C & G Resolution proposes (perhaps because that manner is inconsistent with the manner in which the Union Rules contemplate that disputes about the allocation of members between divisions should be resolved).

Nonetheless, I proceed upon the assumption that the applicant’s suspicion has at least some foundation in fact (senior counsel for the applicant described it as being founded in the “real world”—a gruff, but not unfair, summation). The correspondence exchanged as between the applicant and the first respondent during the week beginning 22 February 2021 appears to support that assumption. In the course of that exchange, the applicant laid out why it was that the National Executive could not do as the C & G Resolution contemplated and why any dispute about the allocation of members should instead be resolved pursuant to the process for which rule 7(viii) of the Union Rules provides. The first respondent disputed the applicant’s construction of the rules and maintained that the National Executive could resolve the dispute in the manner that the C & G Resolution proposed. The exchange is suggestive of a dominant grouping (here, the C & G division) moving to flex its numerical muscle in the service of its industrial interests, to the detriment of a weaker group (the M & E division).

10    The Court’s interlocutory orders were based on the Court’s acceptance of an argument about the operation of the Rules, which is summarised at [50] of its reasons:

Rule 42(iii)(a), when read together with r 7(iv), seems on its face to contemplate that all members of the Union who are employed in the mining, exploration and energy industries should be allocated to the M & E division. As the rule expressly notes (by its reference to rub-rules 2(A), (B), (C) and (E)), that includes those who perform construction work within those industries that, were it conducted elsewhere, would entitle them to membership of the C & G division. If given effect to, the C & G Resolution would potentially permit the allocation to the C & G Division of construction workers (an admittedly loose term that I employ in the absence of a better one) who perform work in the mining, exploration or energy industries. It would substitute the relatively clear mandate for which rule 42(iii) of the Union Rules provides with a regime that purports to permit allocation of members “by reference to the division that services and maintains the award that covers the work performed by the member” (whatever that fabulously unclear turn of phrase might mean in practice) or even “as the National Executive sees fit”. That is a reality that the Union Rules— particularly rules 7(iv) and 42(iii)—appear to forbid.

11    Paragraphs [51]-[52] state:

The respondents contend that rules 7(iv) and 42(iii) of the Union Rules are not as clear as the above suggests. Senior counsel for the respondents noted the reference in rule 7(iv) to Union members being “attached to the Division of the Union covering the industry or employment of the member” (emphasis added). It was said that rule 42(iii)(c)—which defines eligibility for membership of the C & G division—could be read as entitling those who were employed to perform construction work; that is, that the eligibility of those members to be members of the C & G division could arise as a function of their employment, rather than the industry within which they perform their work. Although that contention can’t be entirely discounted, it is likely not a correct construction of rule 42(iii). Both paragraphs (a) and (c) of that subrule (which pertain, respectively, to membership of the M & E division and the C & G division) relevantly define divisional eligibility in terms of the industry within which a particular member is employed, not the nature of their employment within that industry. Although eligibility for membership of other divisions might, as rule 7(iv) contemplates, arise as a function of “employment” rather than “industry”, eligibility for membership of the M & E division (at least in the case of those who perform construction work) appears to depend solely upon whether or not they are employed in the mining, exploration or energy industries. Insofar as concerns the C & G division, eligibility depends (relevantly) upon whether a member is “employed in or in connection with the Construction industry”. A member is not eligible for membership of the C & G division if he or she is not so employed (for example, because he or she is employed in the mining industry) and is referred to in either of paragraphs (a) or (b) of sub-rule (iii). At the very least, these questions are ripe for serious debate at trial.

I am, then, satisfied that there is a prima facie case that members of the National Executive collectively will (or threaten to) endorse the outcome that the C & G Resolution urges them to endorse and, by doing so, will (or threaten to) conduct themselves in a way (or otherwise purport to authorise a state of affairs) that is contrary the Union Rules.

(Emphasis original.)

12    Paragraphs [61]-[62] state:

Whatever might be the strategic industrial imperative to which the C & G Resolution (and the proposed resolution of the dispute to which it pertains) is directed—and I pause to note that there was at least some evidence of legitimate concern arising from a recently abandoned attempt by the M & E division to change its eligibility rules—I consider that it has a real prospect of visiting genuine prejudice upon the M & E division (or its members). Whether it is designed to or not, the C & G Resolution has the potential to cause real confusion—and, potentially, genuine disputation and disruption—concerning the eligibility limits of each division. That scope for uncertainty might well influence, potentially adversely (for those who favour disaffiliation), the deliberations of the upcoming M & E divisional conference. It might serve as a future source of disputation insofar as concerns any future application made under div 2 of part 3 of the FW(RO) Act. In that sense, the respondent’s offer to undertake that there would be no “poaching” of M & E division members rings somewhat hollow. Even were it to refrain from actively signing existing M & E division members into the C & G division, there remains prejudice to the M & E division in the form of the potential diminution of its claim to future members.

Of course, that is a knife that cuts both ways. The C & G division is entitled to protect its interests in the face of the M & E division’s potential withdrawal from the Union. It has a legitimate interest (subject to its compliance with the Union Rules) in seeking to ensure that its slice of the membership pie is as large as possible. That interest can be protected by way of submission to the Fair Work Commission if or when an application under div 2 of part 3 of the FW(RO) Act is made.

13    For convenience, from this point in my reasons, I will refer to Mr Noonan when I am describing the applicants on the leave application, and Mr Kelly when I am describing the respondents, as each of these gentlemen was the lead individual of the numerous individuals who were parties to the proceeding.

14    Four errors are alleged on behalf of Mr Noonan, which I set out below.

15    Mr Noonan’s insistence on the urgency of the matter led the Court to convene a hearing on Saturday 27 February 2021. At that hearing senior counsel for Mr Noonan outlined the need for the stay. In essence, he submitted the urgency turned on the provisions of s 95A(4) and (6) of the Registered Organisations Act. Section 95A is located in Div 2 of Part 3 of Chapter 3 of the Registered Organisations Act. This Division deals with secret ballots for withdrawal from amalgamated organisations such as the Union, and the proposed registration of a new organisation. The Commission is the entity charged under Div 2 with the conduct of such a secret ballot, but only after an application for such a ballot has been received. Section 94 also prescribes the matters which must accompany an application. I shall describe this as a s 94 application. The Division sets out a number of requirements for any such application. The applicants’ arguments focus on s 95A, a newer provision, which is entitled “Proposed names and rules”. Section 95A provides:

(1)    The application must also be accompanied by:

(a)    a statement of the name, and a copy of the rules, proposed for the organisation (the new organisation) that the constituent part is to be registered as when the withdrawal from amalgamation takes effect; and

(b)    a statement of the name, and a copy of the alterations of the rules, proposed for the amalgamated organisation when the withdrawal from amalgamation takes effect.

(2)    The name proposed for the new organisation must not be the same as the amalgamated organisation, or so similar to the name of the amalgamated organisation or any other organisation as to be likely to cause confusion.

(3)    The name proposed for the amalgamated organisation must reflect the withdrawal of the constituent part.

(4)    The eligibility rules of the new organisation:

(a)    must, as far as practical, reflect the application of the eligibility rules of the amalgamated organisation in relation to the constituent part immediately before the application was made; and

(b)    must not have the effect of making a class of individuals eligible for membership of the new organisation if that class would not have been eligible for membership of the constituent part immediately before the application was made.

(5)    The eligibility rules of the amalgamated organisation as proposed to be altered must, as far as practical, avoid an overlap with the eligibility rules of the new organisation.

(6)    Whether eligibility rules have the effect required by subsections (4) and (5) may be determined by examining the organisational and administrative arrangements for the amalgamated organisation before the application was made.

(7)    If the applicant has insufficient information to prepare the statement and alterations mentioned in paragraph (1)(b), the applicant may request the General Manager or the Commissioner to:

(a)    give the applicant all information in the possession of the General Manager or the Commissioner, as the case requires, that may be relevant in the preparation; or

(b)    direct the amalgamated organisation to give the applicant all information in the possession of the organisation that may be relevant in the preparation.

(8)    The General Manager or the Commissioner may provide that information, or direct the amalgamated organisation to provide that information.

(9)    The amalgamated organisation must comply with a direction of the General Manager or the Commissioner under subsection (8).

Civil penalty:    100 penalty units.

(10)    The FWC may allow statements of name, or rules or alterations of rules, to be amended by whoever filed them with the FWC.

(11)    If the FWC is not satisfied that a proposed name complies with subsection (2) or (3), or that proposed rules or alterations of rules comply with subsection (4) or (5), the FWC must order the making of any amendments the FWC considers are needed for compliance with the subsection.

16    Mr Noonan’s contention is that subs 95A(4) and subs (6) speak to a specific period of time; namely prior to the making of an application under s 94. They are concerned with the state of the amalgamated organisation’s rules, and its “organisational and administrative arrangements” at that point in time. The contention appears to be that the proposed determination, by the National Executive of the Union, of the Construction and General dispute notification will clarify, one way or the other, the state of the Union’s rules, and therefore the “organisational and administrative arrangements” in relation to those construction workers who perform work in the mining, exploration or energy industries from time to time. In turn, it is said it will then be clear whether the proposed new rules of any Mining and Energy organisation conform to s 95A(4).

17    Without a stay on the Court’s orders, what the applicants apprehend is that Mining and Energy could file a s 94 application before the leave to appeal process, and if leave is granted, the appeal process, is complete. That would, they contend, render any appeal nugatory as the National Executive would not have been able to perform its dispute resolution function and make a decision before the s 94 application, so as to have that decision included in the “organisational and administrative arrangements” to which the Commission must have regard under s 94(6), in making the requisite determination.

18    Counsel for Mr Kelly had, unsurprisingly, a different perspective. The construction of subs 95A(4) and subs (6) on which Mr Noonan relies is disputed. However, aside from that issue, counsel for Mr Kelly also pointed out that there are several steps to be taken prior to any application under s 94. First, the National Conference of Mining and Energy must consider the proposal to withdraw. That, he informed the Court, was scheduled to be debated in the afternoon of 1 March 2021. If that proposal is accepted by the Conference, it goes to Mining and Energy’s National Council, as a recommendation. The recommendation must be accepted by the National Council before any application under s 94 can be made.

19    Having heard that explanation, the Court suggested at the Saturday hearing that counsel for Mr Kelly could explore whether an undertaking might be given that no application under s 94 would be made before the Court heard and determined both the leave to appeal application and the stay application. Ultimately, an undertaking was given on behalf of Mr Kelly and the respondents in the following terms:

that no application to the Fair Work Commission under s 94 of the Fair Work (Registered Organisations) Act 1988 (Cth) will be made in respect of the Mining and Energy division of the Construction, Forestry, Maritime, Mining and Energy Union before 4pm on 3 March 2021[.]

20    In those circumstances, senior counsel for Mr Noonan was instructed not to press for any stay ahead of a full hearing, listed for 9am on 2 March 2021.

Evidence and submission

21    That hearing on 2 March 2021 occurred, both parties having filed affidavit material and written outlines of submissions. At that hearing, senior counsel for Mr Kelly informed the Court that he, his junior and his instructor held instructions to appear on behalf of all respondents, except the fifth respondent.

22    There was no separate appearance by the fifth respondent. Senior counsel for Mr Kelly informed the Court the fifth respondent had been asked, like all other respondents, whether he wished to be represented by Mr Kelly’s legal team, and he had declined. Senior counsel for Mr Noonan confirmed the fifth respondent had been served with the leave to appeal application. In those circumstances, I determined it was appropriate for the hearing to proceed, although there was no appearance by or on behalf of the fifth respondent. I infer from what the Court was told that the fifth respondent made a conscious decision not to appear by himself, or through a lawyer.

23    Mr Noonan relied on three affidavits of Mr Jack Oscar Oates Faine, affirmed on 26 February 2021, 27 February 2021 and 1 March 2021 respectively. Mr Faine’s 26 February 2021 affidavit was filed in support of the application for leave to appeal, and set out the relevant procedural chronology preceding the application, including by annexing the relevant documents. Mr Faine also deposed in this affidavit as to why a stay of the Court’s interlocutory orders should be granted in line with the submissions made on Mr Noonan’s behalf.

24    Annexure JOF-2 to Mr Faine’s first affidavit was a further affidavit, of Mr Phillip Pasfield dated 24 February 2021, which was filed in the original interlocutory application heard on 25 February 2021.

25    Mr Faine’s 27 February 2021 affidavit deposed as to the correspondence that had occurred between the parties on the afternoon of 26 February 2021 and morning of 27 February 2021. Mr Faine stated that, after noting to Mr Kelly’s legal representatives that the urgent application for interlocutory relief had been listed on Monday 1 March 2021 (as was the initial advice to the parties provided by the Court), he requested that Mining and Energy undertake that:

should it receive advice from the Convention recommending withdrawal and should it agree with that advice, that it will not make, or cause to be made, an application under section 94 of the Fair Work (Registered Organisations) Act 2009 (Cth) pending hearing and determination of the stay application.

26    Mr Faine deposed that at the time of making the 27 February 2021 affidavit, he had not received a response to this request. The 27 February 2021 affidavit also set out the attempts made on behalf of Mr Noonan to serve the respondents with the notice of appeal and application for leave to appeal, and amended versions of those documents.

27    Mr Faine’s 1 March 2021 affidavit deposed to the prejudicial effect of the Court’s order staying the conference of the National Executive, and was directed at the concern that Mining and Energy would make a s 94 application at short notice. He deposes that the effect of the requirement in the Union’s rules to give notice of any meeting of the National Executive to settle the dispute is that it will not be possible to hold such a meeting prior to 4pm on 3 March 2021, when the undertaking given by the solicitors for Mr Kelly was due to expire. Mr Faine deposed to communication between the parties’ legal representatives occurring on 28 February 2021 to the effect that Mr Kelly had agreed to extend the undertaking until 4pm on 5 March 2021. This was confirmed at the hearing by senior counsel for Mr Kelly.

28    Mr Faine deposed that legal representatives for Mr Kelly had declined to respond when asked to confirm whether the Mining and Energy Central Council proposed to meet after the Mining and Energy National Convention for the purposes of considering a resolution made at the convention to withdraw from the Union. His affidavit explained that the Central Council is composed of various Divisional executives, and is required under the Mining and Energy Divisional Rules to consider any resolution made at the convention and “approve, reject or amend” it. On this basis, and the basis that all members of the Central Council would be attendees at the Convention, Mr Faine deposed that this heightened the applicants’ concern with regards to a meeting of the Central Council being called upon the period of the undertaking expiring.

29    For reasons associated with the Court’s other hearing commitments, the hearing was moved to 9am on Tuesday 2 March 2021.

30    At 7:37pm the evening before the hearing, Mr Noonan provided a fourth affidavit by email to chambers. The fourth affidavit is an affidavit of Mr Declan Vincent Murphy affirmed on 1 March 2021, deposing to the fact that on that date Mr Murphy had accessed Mining and Energy’s website and identified a document indicating that the Convention had unanimously supported a recommendation that the s 94 application be made. Mr Murphy deposed that this online announcement had further heightened the applicants’ concern about the possible calling of a Central Council meeting at short notice.

31    Mr Kelly relied on an affidavit of Mr Phillip John Pasfield, sworn on 26 February 2021, noting the timing of the Mining and Energy National Convention on 1-3 March 2021, and annexing the a copy of r 8 of the Union’s Rules, which Mr Pasfield deposed has the effect that any decision or resolution of the National Convention shall have the status of “non-binding recommendations”. The respondents in oral argument also sought to rely on the affidavit of Mr Pasfield affirmed on 24 February 2021, annexed to Mr Faine’s 26 February 2021 affidavit. That affidavit had not been filed, but in the circumstances of urgency, and in the absence of any objection from the applicants, I have overlooked that technical non-compliance, especially since the earlier Pasfield affidavit was annexed to an affidavit filed by the applicants. The 24 February 2021 Pasfield affidavit should be filed and I have made an order accordingly.

Resolution

32    After the conclusion of the 2 March 2021 hearing, the Court was informed by email that the respondents had extended the undertaking concerning not filing a s 94 application to 10am on 10 March 2021.

33    There is no ground advanced in the application for leave to appeal about the Court’s conclusion concerning Mr Noonan holding himself out as Acting National Secretary. This was not a basis for the Court’s interlocutory orders.

34    The overall background, the relevant rules and the relevant provisions are all set out in the reasons of the Court given on 26 February 2021: see Kelly v Noonan [2021] FCA 146. Save where I expressly state otherwise, it can be assumed I have gratefully adopted, and accepted the description in those reasons.

35    The merits of the leave to appeal application are plainly intertwined with whether or not a stay of the Court’s 26 February orders should be granted. The underlying reason for the stay also depends on the proper construction of subs 95A(4) and subs (6), which is the basis for the fourth proposed ground of appeal.

Applicable principles for the grant of leave to appeal

36    Section 25(2)(a) of the Federal Court of Australia Act 1976 (Cth) provides that applications for leave to appeal must be heard by a single judge. There is no debate between the parties that the Court’s 26 February 2021 orders are interlocutory in nature, and leave to appeal is required.

37    Mr Kelly relied on the principles set out in Ashby v Slipper [2016] FCAFC 63; 241 FCR 55 at [41], quoted in Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Corporation [2016] FCAFC 97; 242 FCR 153 at [13]:

The test for granting leave to appeal from an interlocutory judgment comprises two questions:

(1)    whether, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court; and

(2)    whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

38    As the Full Court also noted, where the impugned interlocutory ruling is discretionary, leave is “less-often granted”, because the errors identified must have the particular character described by the High Court in House v The King [1936] HCA 40; 55 CLR 499 at 504-505. There the High Court said (notwithstanding the now inaccurate use of the male pronoun):

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.

39    The applicants accepted these were the applicable principles.

Applicable principles for the grant of a stay

40    In oral submissions, Mr Noonan contended that there was no substantive difference between the principles applicable to the grant of a stay and a grant of leave to appeal.

41    Mr Noonan relied on Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 (by his litigation representative BFW20A) [2020] FCA 615 at [12] for what they submitted are “well-established” principles with respect to the granting of a stay:

The onus is on the applicant for the stay to show that it should be granted. The judgment below is not considered provisional until confirmed on appeal and the respondent to an application for a stay has a prima facie entitlement to the fruits of his or her success. An important matter in favour of a stay is where the circumstances are such that, absent a stay, the subject matter of the appeal will be lost. Of equal importance in determining whether a stay is granted may be the presence of circumstances, should a stay be granted, that give rise to a real risk of the applicant for the stay acting in a way which prevents him or her from satisfying the first instance judgment. In those circumstances, a stay may be refused or granted only on condition that security be provided. The Court will consider the merits of the appeal, but only to the point of being satisfied that it is reasonably arguable. The Court will also consider the loss to the respondent, should a stay be granted, and other matters relevant to both parties and the balance of convenience. Finally, any disentitling conduct by the applicant for the stay will be considered[.]

42    Besanko J in this passage attributes the principle in the final sentence to Mitolo Wines Aust Pty Ltd v Vito Mitolo & Son Pty Ltd (No 3) [2019] FCA 2116 at [10]-[13]. Mr Kelly emphasised Besanko J’s statement in Mitolo Wines at [12] that:

Where there is a real risk that the successful party may be deprived of the full benefit of their judgment if a stay is granted and the appeal is ultimately unsuccessful, this is a strong reason for not granting a stay.

43    Mr Kelly also relied on the statement of principles found at [5] in Gill v Ethicon Sárl (No 9) [2020] FCA 1838. Katzmann J in that paragraph quotes from her earlier judgment in Gill v Ethicon Sárl (No 8) [2020] FCA 771 at [48]-[51] to the effect that:

First, while special circumstances are not required and the Court has a broad discretion, the judgment is not to be treated as provisional. The Court starts with the premise that the successful party is entitled to its benefit and to the presumption that it is correct. Consequently, an applicant for a stay carries the burden of establishing that a stay is appropriate. See, for example, Alexander v Cambridge Credit Corporation Ltd (receivers appointed) (1985) 2 NSWLR 685 (CA) at 693–695; Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 (FC) at 66 (Burchett J).

Second, the burden is not discharged merely by the filing of an appeal or an application for leave to appeal: Alexander at 694.

Third, a stay should not be granted unless the appeal is at least arguable, but “the existence of an arguable case on appeal does not of itself justify the granting of a stay”: Red Bull Australia Pty Ltd v Sydneywide Distributors Pty Limited t/as Sydneywide Bottlers Australia [2001] FCA 1750 at [6] (Hely J).

Fourth, in the exercise of the discretion, the Court will weigh up such factors as the balance of convenience and the competing rights of the parties, including, in particular, whether prejudice will be caused by the grant or the withholding of a stay. If there is a risk that the appeal would be rendered nugatory if a stay is not granted in the event that an appeal is successful, this will be a substantial factor in favour of granting a stay. See Alexander at 693–695; Phillip Morris (Australia) Pty Ltd v Nixon [1999] FCA 1281 (FC) at [17].

44    In oral submissions, senior counsel for the applicants also drew attention to the recent summary of the principles applicable to grant of a stay in Clover Corporation Ltd v Tobias [2020] FCA 1244 at [32]:

The applicable principles concerning the application for a stay were not in dispute. In Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 at 66, the Full Court agreed with the principles stated by the New South Wales Court of Appeal in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 at 694-5:

(a)    it is unnecessary to show ‘special’ circumstances for the grant of a stay and it is ‘sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour’;

(b)    a successful party is entitled to the benefit of the judgment obtained and is entitled to commence with the presumption that the judgment is correct;

(c)    it follows that the onus is upon the applicant for the stay to demonstrate a proper basis for a stay that will be fair to all parties;

(d)    the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it;

(e)    if an appeal will be rendered nugatory unless a stay is granted, that will be a substantial factor in favour of the grant of a stay; and

(f)    while the Court will not generally speculate about the appellant’s prospects of success (given that argument concerning the substance of the appeal is typically and necessarily attenuated on a stay application), the Court may make some preliminary assessment about whether the appellant has an arguable appeal in order to assess the competing interests of the parties.

45    The applicants sought to rely in particular on paragraph (e). The applicants submit that the stay should be granted because:

(a)    the grounds of appeal are reasonably arguable;

(b)    on the Court’s own reasons, the grant of relief was finely balanced for the reasons given by his Honour at [62] of the Primary Reasons. If any of the grounds of appeal are successful, it is likely the outcome would have been different and favoured the applicant;

(c)    if a stay is not granted, the subject matter of the appeal is likely to be lost and the application for leave to appeal rendered otiose; and, by contrast,

(d)    if a stay is granted, there is no irremediable prejudice to Mr Kelly’s rights.

The relevant Union Rules

46    As each party explained in their submissions, eligibility for membership of the Union is governed by r 2 of the Rules. It is unnecessary to set out r 2 in full. Mr Kelly submitted, and it is apparent from perusal of the Rules, that as incoming unions have been absorbed or amalgamated into the Union, eligibility rules have been added to r 2. This process and r 2 is described in O’Connor at [25].

47    Members of the Union are each attached to one of the Union’s four Divisions, of which Mining and Energy and Construction and General are two. Rule 7 deals with “Membership”. Rule 7(iv) states:

A member shall be attached to the Division of the Union covering the industry or employment of the member and shall be in only one such Division. Each member shall be notified of the Division to which such member is attached or any other classification relevant to the Rules of the Union and such Division or classification shall be entered on the record of the Union in relation to that member which record shall be conclusive proof of the Division and/or classification to which that member is assigned.

(Emphasis added.)

48    Rule 7(viii) provides for the resolution of disputes about the appropriate Division to which a member should be attached. Paragraphs (a) and (b) set out what is to occur where either a Division Secretary/Branch Secretary believes a worker in her or his branch should be attached to a different Division (see (a)); or where such a person believes a worker in another branch should be in her or his Division (see (b)). Paragraph (c) provides for the settlement of these questions “by custom or practice”, and for transfer as a result, as well as for objection to any transfer. In such a case, the National Executive determines any objection to transfer.

49    By paragraph (d), the method to be used by the National Executive to resolve disputes is prescribed. Paragraph (d) of r 7(viii) states:

Any determination by the National Executive or officer designated by the National Executive shall use the principles established in and by sub-rules 42(i) and 42(iii) hereof.

50    Each of the Divisions has its own rules, including rules identifying eligibility for membership of that Division; relevantly r 2 of the Construction and General Rules, and r 3 of the Mining and Energy Rules. These are set out in Mr Noonan’s written submissions at [11]-[12] and need not be repeated here. Mr Noonan contends there is an overlap. At one point in time Mr Kelly and the respondents appear to have agreed. In mid-January 2021, Mining and Energy made an application to the Commission to amend its divisional eligibility rule, stating that the amendment “seek[s] to provide greater clarity as to which members falls within the coverage of the Division”. It was this application, the applicants contend, which prompted Construction and General to lodge the dispute notice with the National Executive and propose the resolution it did.

51    Continuing their inability to agree on very much at all, the parties differed on whether, once the National Executive was seized of the dispute, r 42(iii) provided a clear answer, even if by r 7(viii)(d), this was the Rule to which the National Executive must have regard in resolving any such dispute. Rule 42(iii) provides:

After Amalgamation

Subject to any changes made by unanimous decision of the National Executive Committee following amalgamation, there shall be a restructuring of the Divisions on the following basis:

(a)    There shall be created a restructured Mining and Energy Division which shall consist of all members of the union eligible to be members under Rule 2 (D) and all members, including members eligible under Sub-Rules 2 (A), (B), (C) and (E) employed in the Mining, Exploration and Energy Industries and all members employed in the County of Yancowinna:

(b)    There shall be created a Forestry and Forest, Building Products Manufacturing Division (herein after referred to as the Forestry Division) which shall consist of all members of the union eligible to be members under Rule 2 (C) and all members, including members eligible under Sub-rules 2 (A), (B) and (E) employed in the following sectors of the industry (or occupations within them):

Forest and forest products industry,

Pulp and paper industry,

Timber and building related manufacturing industry including joinery, wall frame/roof trusses, furniture, aluminium windows, glass window manufacturing and any other sectors of manufacturing activity as agreed to between the ATAIU and the Building Unions and FEDFA Divisions of the union.

This sub-rule up until April 3rd 2000 shall be read subject to the agreement entitled CFMEU Forestry Division and CFMEU Construction & General Division Translation Agreement dated September 2nd 1998.

(c)    There will be a Construction and General Division which shall consist of all members of the union employed in or in connection with the Construction industry (including shopfitting) and all other members of the Union not referred to in sub-rules (iii) (a) (b) and (d) herein.

(d)    deleted

(Emphasis added.)

52    Paragraph 42(iv) reads:

The transfer of members from any Division to any other Division in accordance with the restructuring proposals in sub-rule (iii) herein, shall be on terms as agreed to by the Divisions concerned in the transfer and sub-rule (iii) shall be used as the basis of an agreement.

53    The applicants contend r 42(iii)(c) makes it clear that any workers who might be engaged in construction work at a mining site remain employed “in connection with” the Construction industry and so at least could be considered to remain Construction and General members under that rule. The respondents contend this interpretation ignores the second part of r 42(iii)(c), which excludes workers within subrr 42(iii)(a) and (b) ((d) having been deleted) and thus retains such workers as members of Mining and Energy.

54    In O’Connor, the Full Court made the following findings about r 7 and r 42 (at [95]-[104]):

Rule 42 is to be construed having regard to its content, evident purpose, context and place in the achievement of the structural scheme within the Union.

Rule 42 is, as its heading indicates, a transitional provision. Moreover, it is a transitional provision directed to particular amalgamations as evidenced by the insertion into the heading in March 2018 of the words “Original Amalgamation”. That heading serves, at the least, to signal that Rule 42 is not concerned with later amalgamations. Instead Rule 42 is one of a suite of provisions by which the Union provided for the integration of amalgamating unions. This suggests by itself that it would be appropriate to construe Rule 42 having regard to its role in the suite of transitional provisions, including when appropriate, provisions which have been deleted.

Rule 42 addressed two stages in the amalgamation process: what was to occur at the time the amalgamations actually took effect and what was to occur subsequently (albeit within specified timeframes).

As to the first, Rule 42(i) provided that, upon the happening of the amalgamations, the amalgamating unions would form union-based Divisions within the Union, identified who was to be within each union-based Division, and dealt with the potential for overlap between the membership of the FFTS Division and other Divisions by providing for demarcations to follow the status quo and existing custom and practice.

The Judge considered that Rule 42(i) has ceased to be operative. If by this the Judge was referring to the effect of Rule 42(i) considered only on its own terms, we respectfully agree. The amalgamations on which it operated occurred well in the past and its intended effect has long since been achieved. None of the union-based Divisions for which Rule 42(i) provided now exist. The basis for the demarcations to which it referred was stipulated to operate only while the FFTS Union Division continued its separate existence, and that existence ceased in July 2002.

55    In these passages, the Full Court recognises the role of the National Executive in settling membership disputes between Divisions about individual workers. It also recognised there was only one way individual members could be transferred – namely on terms agreed to by the Divisions.

56    The National Executive is established by r 15. The process by which Mr Noonan contends the underlying dispute should be resolved, and which they are stayed from undertaking by the Court’s interlocutory order, is that set out in r 15(iv)(e):

The National Executive shall, unless its actions are overturned by the National Conference, have the care, control, superintendence, management and administration in all respects of the affairs, business, national funds and property of the Union and shall have and may exercise no more and no less than all of the powers of the National Conference and, without limiting the generality of the foregoing may:

…

(e)    Settle disputes between Divisions or Branches. Any Division or Branch concerned shall be given reasonable notice of the meeting and an opportunity of being heard before any settlement is effected.

57    Senior counsel for Mr Noonan also drew the Court’s attention to r 15(v):

All acts and decisions of the National Executive shall have full force and effect and full validity unless and until such acts or decisions are reversed or amended by the National Executive or the National Conference.

(Emphasis added.)

58    It was this provision which Mr Noonan contended made decisions of the National Executive binding on the Divisions.

The terms of Construction and General’s proposal

59    By its notice of dispute, the way that Construction and General proposed the National Executive should perform its dispute settlement function under r 15(iv)(e) was by passing the following resolution:

Schedule 1

Resolution

1.    The National Executive is satisfied that there exists a dispute between the C&G Division and the M&E Division.

2.    The National Executive is satisfied that it is appropriate to resolve the dispute under Rule 15(iv)(e) of the Rules.

3.    The National Executive resolves that where a member of the CFMMEU is simultaneously and in connection with the same employment:

(a)    eligible for membership of the CFMMEU by virtue of Rule 2 Subrules (A), (B) or (E), and thereby eligible for membership of the C&G Division in accordance with Rule 2 of the C&G Rules; and

(b)    is also a person engaged in or in connection with the industries enumerated in Rule 3 of the M&E Rules and thereby eligible for membership of the M&E Division; the member shall be allocated to a division in accordance with Rule 7 by reference to the division that services and maintains the award that covers the work performed by the member (or would cover that work but for the application of any enterprise agreement).

60    It was this form of resolution which Mr Kelly contended to the primary judge would be beyond power of the National Executive, because it was inconsistent with what the National Executive was required to do under r 7(viii)(d).

The issues to be determined

61    While the approach for the grant of leave to appeal, and the approach to the grant of a stay pending appeal, or leave to appeal, are expressed differently, they have some common themes.

62    In each approach, the Court is asked to look at the merit of the arguments advanced about error in the existing interlocutory orders, by reference to the Court’s reasons for those orders. In considering leave to appeal, this is described as whether the decision is attended by “sufficient doubt”. In considering a stay, this is described as whether the applicant’s contentions are “arguable”.

63    In each approach, there is then a range of discretionary or evaluative factors to be weighed – “substantial injustice” if leave is not granted; “prejudice”, “competing rights”, and whether without a stay there is a risk any appeal (if leave is necessary and is granted) may be rendered nugatory.

64    In each approach, the Court is to give weight to the position enjoyed by the party who succeeded on the orders as they stand – that party’s entitlement to benefit from the relief the primary judge has decided to grant is not to be lightly disturbed.

65    I propose to consider the factors broadly under these headings – merit of the arguments, and discretionary and evaluative factors. I do so bearing in mind the matter at [64].

Merits of the arguments

Merits of the leave to appeal application

66    Mr Noonan’s proposed notice of appeal alleges four errors in the primary judgment. Mr Noonan submitted that each of these grounds is reasonably arguable, and that “several of the grounds are strongly arguable”. Mr Kelly submitted that the grounds are not reasonably arguable, and made submissions in support of the construction of r 15(iv)(e) and subrr 7(iv)-(viii) accepted by the primary judge at [50]-[51].

Ground 1

67    Amended ground 1 is put as follows:

The primary judge erred in finding, at [50] of [2021] FCA 146] (Reasons), that it was strongly arguable that the resolution proposed by the Construction & General Division (C&G Division) of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) would be forbidden by the Rules of the CFMMEU Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), properly construed as a whole.

68    Paragraph [50] of the primary decision is extracted at [10] above. Recalling that the primary judge heard the application on 25 February 2021 and delivered lengthy reasons on 26 February 2021, it is important to read his Honour’s reasons fairly and in that context. At the start of [50], his Honour addresses the argument put by Mr Kelly, and maintained by the respondents on the leave to appeal argument. That argument rests on the proposition that r 7(viii) provides a specific process, in respect of specific workers, to resolve disputes about eligibility for membership of branches of the Union. It also provides in paragraph 7(viii)(d) how the National Executive is to resolve such disputes, in relation to specific workers. As Mr Kelly contended, those provisions are not general policy statements, but instead set out a process to be applied where there are real, not hypothetical, debates about the eligibility of a specific worker. The Rules intend those debates to be resolved by reference to the specific factual circumstances pertaining to those workers.

69    That is what the primary judge decided at [49]-[50], when read together. To recall, his Honour said at [49] (with my emphasis):

In the course of that exchange, the applicant laid out why it was that the National Executive could not do as the C & G Resolution contemplated and why any dispute about the allocation of members should instead be resolved pursuant to the process for which rule 7(viii) of the Union Rules provides. The first respondent disputed the applicant’s construction of the rules and maintained that the National Executive could resolve the dispute in the manner that the C & G Resolution proposed.

70    Then at [50] (again with my emphasis):

I am satisfied that there is at least an arguable basis for the contention that the applicant advances. Assuming (as I do) that the members of the Union’s National Executive will vote as the C & G Resolution urges them to, the result would be—or would purport to be—the institution of an arrangement or practice binding upon the M & E division that governs the allocation of members amongst the two divisions that is, at least arguably (and, I think, strongly so), inconsistent with the Union Rules.

71    In my opinion it is clear that the primary judge is describing the proposal for an overriding general policy or practice about membership allocation to the Divisions, which is the substance of the Construction and General proposed “resolution” in the notice of dispute, and it is that which his Honour finds is “inconsistent” with the specific, worker-based process set out in r 7(viii).

72    That this is the correct understanding of the primary judge’s reasoning is confirmed by the way his Honour’s conclusion is later expressed at [67]:

Insofar as concerns the C & G Resolution, I am satisfied that there is a prima facie case—I think a strong one—that, assuming (as I do) that the members of the Union’s National Executive will vote as the C & G Resolution urges them to, the result would be—or would purport to be—the institution of an arrangement or practice, ostensibly binding upon the M & E division, that governs the allocation of members amongst the two divisions, and that does so in a way that is inconsistent with the Union Rules.

73    It is true that in the remainder of paragraph [50], the primary judge then embarks on a consideration of what the correct construction of r 42(iii) is, in terms of allocation of members. That was, in my respectful opinion, additional reasoning to his Honour’s primary reasoning on the basis for the interlocutory injunction. It is true his Honour concludes this paragraph with a strong statement to the effect that the Union rules “forbid” a regime which allocates members by reference to awards rather industries, but again I consider this is secondary to, the main point of the then applicants’ arguments about inconsistency, which his Honour had expressly accepted.

74    In my opinion, his Honour was correct to accept Mr Kelly’s contention on inconsistency and there is no arguable error in him doing so. The Rules clearly do provide for a worker-by-worker dispute resolution process. The proposed Construction and General resolution attempted to effect a policy-based reallocation in a hypothetical context.

75    Ground 1 is not sufficiently arguable.

Ground 2

76    Amended ground 2 states:

The primary judge erred in finding at [52] of the Reasons that the members of the National Executive of the CFMMEU will, or threaten to, endorse the resolution proposed by the C&G Division in circumstances where:

  (a)    the primary judge reached the conclusions that he did at [48] of the Reasons;

(b)    the National Executive of the CFMMEU has authority under the Rules to settle disputes between Divisions, operates as the supreme governing body of the CFMMEU and has rule making powers.

77    Paragraph [52] is reproduced at [11] above. Paragraph [48] is reproduced at [9] above.

78    This ground concerns what is in my opinion properly characterised as an inference drawn by the primary judge. Nothing turns on his Honour’s use of the word “assumption”, and senior counsel for Mr Noonan ultimately (and properly) conceded that.

79    I accept Mr Kelly’s contentions that there was a clear evidentiary basis before the primary judge sufficient for him to draw this inference. That evidence was:

(a)    the proposal in the Construction and General dispute was put forward by unanimous resolution of the Divisional Executive of Construction and General;

(b)    Construction and General is “numerically omnipotent” in the National Executive; and

(c)    the correspondence between Mr Noonan and Mr Kelly referred to at [49] of the Reasons.

80    As to (a) and (b), the unanimity behind the resolution is a proper basis to infer that those Construction and General members who voted this way were likely to adhere to that view when they came to vote as members of the National Executive. The applicants conceded the National Executive was numerically dominated by members of Construction and General, and that the National Executive operated by majority voting. The numbers on the National Executive were also deposed to by Mr Pasfield at [37] of his 24 February 2021 affidavit.

81    As to (c), at [49] the primary judge made the following finding about the correspondence between the two groups:

The exchange is suggestive of a dominant grouping (here, the C & G division) moving to flex its numerical muscle in the service of its industrial interests, to the detriment of a weaker group (the M & E division).

82    On reviewing this correspondence, I agree with his Honour’s characterisation. The correspondence is put in somewhat acrimonious terms (from both sides), and I consider that there is some significance to the use of Union letter head in communicating the views of Mr Noonan, as Divisional secretary of Construction and General, and his signature, correctly or otherwise, as the “Acting National Secretary” of the Union.

83    Further, the primary judge used the term “prima facie”, appropriately in drawing this inference as part of an interlocutory decision. His Honour did not in that sense overreach on his fact finding in a way which demonstrates any arguable error.

84    I also consider that the insistence on the importance of the timing of the meeting of the National Executive, and its overwhelming determination (as evidenced in this application and in particular in the stay application) to have a meeting prior to any application by Mining and Energy under s 94 to the Commission makes it very clear that those of Construction and General who dominate the National Executive (including Mr Noonan) well understood the resolution sought by Construction and General was likely to be passed. That is what they intended to occur to frustrate what they saw as the plan of Mining and Energy to have any membership overlap issues resolved in the Commission during a s 94 application rather than by the National Executive. This is the overall context of the dispute as it came before the primary judge and his Honour was clearly alive to that. That is why he used phrases such as “the strategic industrial imperative”: see [61]. These characterisations were open to his Honour on the evidence.

85    There is no arguable error on ground 2. Mr Noonan’s arguments about bias are misplaced, and I accept Mr Kelly’s submissions on this matter.

Ground 3

86    Amended ground 3 states:

The primary judge erred by finding at [61] of the Reasons that allowing the meeting to consider the dispute and the resolution proposed by the C&G Division had the potential to ‘visit genuine prejudice’ on the Mining & Energy Division of the CFMMEU (or its members) in circumstances where:

(a)    the primary judge reached the conclusions that he did at [48] of the Reasons;

(b)    there was no probative evidence of the potential referred to by the primary judge;

(c)    there was probative evidence that the resolution proposed by the C&G Division reflected existing practice in the CFMMEU.

87    The applicants did not address any oral argument to this ground. Paragraph [61] of the primary judge’s reasons is reproduced above at [12].

88    Mr Pasfield had deposed to the potential prejudice to Mining and Energy at [39] of his 24 February 2021 affidavit. In my opinion what his Honour finds at [61] flows naturally from his findings at [50] about the inconsistency of the proposed conduct of the National Executive with the Rules.

89    There is no arguable error raised by ground 3.

Ground 4

90    Amended ground 4 states:

The primary judge erred in concluding at [62] of the Reasons that the C&G Division’s interest could be protected in the manner referred to therein by the primary judge in circumstances where:

(a)    the affected interest was the interest of the CFMMEU;

(b)    the affected interest included the CFMMEU’s interest in its National Executive being able to perform the functions it has under its Rules;

(c)    any invalid act by the National Executive, if any, would be of no effect;

(d)    the inability on the National Executive to deal with the subject matter of the dispute raised by the C&G Division would deny it from performing the dispute settlement function prior to any application that may be made under s 94 of the RO Act Fair Work (Registered Organisations) Act 2009 (Cth).

91    The merits of ground 4 overlap with the question of whether a stay should be granted. Paragraph [62] of the primary judge’s reasons is reproduced at [12] above.

92    Parts of ground 4 build on other grounds, which I have already explained, I do not consider are arguable. It matters not if another way to look at what would have occurred without an injunction is that any discussion of the National Executive would have been “invalid” and of “no effect”, and liable to be set aside. If that is the case, Mr Kelly and the respondents were entitled to an injunction to prevent the unlawful conduct from occurring at all. That is what his Honour found at [51], and I have found no arguable error in that approach.

93    The different factor is paragraph (d) of ground 4, which turns on Mr Noonan’s construction argument about subs 95A(4) and subs (6) of the Registered Organisations Act.

94    I do not consider Mr Noonan’s construction is reasonably arguable, and I do not consider the fact of an application by Mining and Energy under s 94 (if that were to occur) has the drastic and irredeemable effects for which Mr Noonan contends. That is because:

(a)    Section 95A concerns what is proposed to the Commission for the purposes of it preparing a secret ballot under s 94. It concerns the information which will be necessary to put before those workers who will vote in the secret ballot. It is clear from s 96 and s 97 that the “yes” case and the “no” case arguments which are to be filed will be based around, amongst other matters, the proposed names and rules as described in s 95A.

(b)    The objective of s 95A(4) is to preserve the status quo as to membership eligibility in the amalgamated organisation before the withdrawal, and not to allow a s 94 applicant to expand its membership base by proposing rules which alter that status quo.

(c)    That is the purpose of the latter part of s 95A(4)(b), which states that the proposed eligibility rules for the new organisation “must not have the effect of making a class of individuals eligible for membership of the new organisation if that class would not have been eligible for membership of the constituent part immediately before the application was made”.

(d)    Sub-section (5) is the mirror of, or another way of attempting to ensure the same outcome as, subs (4), except it is directed at what the s 94 application must propose about the new rules for the amalgamated organisation post-withdrawal. The objective of requiring a s 94 applicant to avoid an “overlap” is designed, again, to maintain the status quo as it was before the s 94 application, and to avoid any expansion of membership criteria by the s 94 applicant.

(e)    Sub-section (6) confers on the Commission a decision-making role about whether the rules proposed by a s 94 applicant achieve the objectives of subs 95A(4) and subs (5). Senior counsel for Mr Noonan conceded that the word “determined” referred to a determination of the Commission under subs (11).

(f)    What subs (6) empowers the Commission to do is to examine, at a more general level, the “organisational and administrative arrangements” of the amalgamated organisation in order to make this determination. It is a facilitative provision that enables the Commission to see the rules of the amalgamated organisation in their full context. That will assist the Commission in deciding how the two sets of proposed rules (for the new organisation and for the amalgamated one, post-withdrawal) can “as far as practical, avoid an overlap”.

95    In the present situation, the Commission may well be able to take into account how r 7(viii) had, in fact operated and been applied over the years within the Union. For the purposes of this application, no more need be said than that: now is not the occasion for a fulsome discussion on the proper construction of subs 95A(6), and what falls within it or outside it. It is sufficient to note, as I have, that its purpose is facilitative and contextual, and focussed on the task of the Commission under s 95A(6), read with subs (11).

96    Whether or not the National Executive makes a decision on the proposal of Construction and General before any s 94 application cannot affect the Commission’s function under subs 95A(6), or subs 95A(11). As senior counsel for Mr Noonan properly conceded, what the National Executive decides cannot bind the Commission. It has never been suggested the National Executive is proposing to in fact amend the Rules, in accordance with r 25. That is a different process entirely. The National Executive are able to participate in the Commission’s determination process under s 95A, and there was no suggestion there might be any denial of procedural fairness by the Commission. Nor could there be, since this scenario is presently hypothetical as no application under s 94 has been made. The view which the National Executive (or a majority of it) wishes to express about any overlap in membership eligibility rules, and how any proposed rules to be put to workers in a secret ballot should address that, can all be put to the Commission. The Commission should be left to perform the task that Parliament has given under s 95A.

97    The applicant placed some reliance on the terms of the extrinsic material about s 95A. The explanatory memorandum said at [41]-[42]:

New subsection 95A(6) makes clear that whether the eligibility rules have the effect required by subsections 95A(4) and (5) can be determined by looking at the organisational and administrative arrangements for the amalgamated organisation before the application was made.

The purpose of the above provisions is to ensure that as far as practical, the eligibility rules for the newly registered organisation and the amalgamated organisation reflect the status quo applying immediately before withdrawal, meaning that members that are associated with particular parts of the amalgamated organisation remain able to be represented by that part following the withdrawal if they choose. Consideration of internal organisational and administrative arrangements can be used to demarcate coverage, where the rules are not explicit in this regard.

98    There is no inconsistency with the approach I have set out above and this extrinsic material.

99    There is no arguable ground of appeal within ground 4.

Conclusion on merit

100    To be clear, it is not the interpretation of s 95A which founded the injunction granted by the primary judge. Nor is it that interpretation which founds the Court’s decision now about the absence of an arguable ground of appeal on ground 1. Those matters centre on the proper construction of the Union’s Rules as they stand, and the intended effect, as the primary judge found, of the Construction and General proposal to override the operation of r 7(viii) and r 42 in relation to specific workers, by imposing a general policy-based edict about how membership allocation between the two Divisions should have effect.

101    Grounds 2 and 3 should be rejected as not arguable for the reasons I have given. Ground 4 does raise the construction question about s 95A which is relevant both to leave to appeal, and to the grant of a stay. I do not consider Mr Noonan and the other applicants have an arguable case about the operation of s 95A.

Discretionary and evaluative factors

102    I have explained above why I do not consider there is any particular prejudice to Mr Noonan if leave to appeal is refused. The real purpose of granting leave to appeal is to dislodge the injunction granted by the primary judge. As I have explained, there was a proper basis for that injunction. There was a seriously arguable case that the National Executive was proposing to, and was likely to, act in a way which was inconsistent with the Union Rules. The potential confusion and increased disputation amongst ordinary members about their eligibility for one or other of the Divisions, at a critical point where Mining and Energy members are deciding whether or not to support an application under s 94 to withdraw from the Union, was a proper discretionary basis for the primary judge to consider.

103    Mr Noonan’s discretionary factors on leave to appeal hinged on the asserted effects of s 95A. That is what their stay application also hinges on. As I have explained, I consider their reliance on the contended effect of s 95A is misplaced.

104    The proper forum for a working out of any overlap in membership eligibility, and its effects on what the evidence shows is the now unanimous resolution of the membership of Mining and Energy to recommend to its Council a withdrawal from the Union and the lodgement of a s 94 application, is something to be argued before, and determined by, the Commission. The Commission should be permitted to get on with that task, if indeed a s 94 application is made to it.

Conclusion on leave to appeal

105    Having considered all the circumstances of the case, I am not satisfied that the decision of the primary judge is attended by sufficient doubt to warrant its being reconsidered by the Full Court, for the reasons given under each of the proposed grounds of appeal.

106    Given my conclusion on the proper construction of s 95A, I am also not satisfied that by refusing leave the applicants will suffer substantial injustice. If Mining and Energy file a s 94 application, as it seems very likely it will, the applicants will have an opportunity to make such submissions as they see fit before the Commission as it performs its function under s 95A of the Registered Organisations Act. That is the appropriate forum for any further debates about continuing membership overlap.

107    The application for leave to appeal is dismissed.

Conclusion on the stay application

108    For the reasons outlined above, similarly I do not consider that the applicants have discharged their onus of demonstrating a proper basis for the stay sought. I do not consider that, on the balance of convenience, a stay is necessary to retain the status quo as to between the parties. The status quo is preserved by the presence of the Union Rules in the form they appear; the design of new rules for both the Union and any proposed new organisation is a matter left to the supervision of the Commission if and when a s 94 application is made. That is what, in my respectful opinion, is fair to all parties.

109    Further, I have found no arguable error in the reasons of the primary judge supporting the grant of injunctive relief. In the present case, given the leave to appeal application was argued together with the stay application, the Court has had a reasonably full opportunity to consider the applicants’ proposed arguments on appeal, and the argument was less “attenuated” than it might be in a situation where there is an appeal as of right and the stay application is dealt with separately.

110    Where leave to appeal is refused, it is unnecessary to consider the risk that an appeal will be nugatory by my decision not to grant a stay.

111    The respondents in these circumstances are entitled to the benefit of the primary judgment and orders. The application for stay is dismissed.

Associate:

Dated:    5 March 2021

SCHEDULE OF PARTIES