Cooney v Gibbs & Ors [1987] FCA 132

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Allztharn v7 Stapleton (1534) 1 FCR 236

COONEY v GIBBS & ORS.

Viol OF 19a? 13 MARCH, 1387

KEELY J.

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGI

INDUSTRIAL DIVISTON

JUDGE MAKING ORDER: DATE OF ORDER: WHERE MADE:

THE COURT ORDERS THAT:

1.

) ) STRY ) ) )

No. Vl of 1987

BETWEEN:

JUDITH ADELLA COONEY Applicant

AND:

MINUTE OF ORDER

Keely J. 19 MARCH, 1987

Melbourne

The first respondent perform and observe the rules

JENNIFER LOUISE GIBBS, JEANETTE BUDAK, ROBYN McADAM KATHLEEN

MATTHEWS KATHLEEN

GILBERT KAYE CHALLINGER, ROSEMARY BRYANT, MAREA

VIDOVICH ANNETTE GALLAGHER, THERESE JENKINS, JILL KENNEDY, JUDY __ GIAROLA, ANN ARTHUR, PAMELA WRIGHT, SANDRA YORSTON, MARGARET GAGEN, ROSLYN McCOY,. JOHN BROWN and

ENID JENKINS

Respondents

of

the Royal Australian Nursing Federation by ceasing and

Note: 36 of the Federal Court Rules.

refraining from holding herself out a8 a member of the

Federal Council of the Federation.

Bach of the second to seventeenth respondents perform and observe the rules of the Royal Australian Nursing Federation by ceasing and refraining from treating or recognising the first respondent as a member of the

Federal Council of the Federation.

Settlement and entry of orders is dealt with in Order

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

were ew

INDUSTRIAL DIVISTON

No. Vl of 1987

BETWEEN:

JUDITH ADELLA COONEY

Applicant

AND:

19 MARCH, 1987

JENNIFER LOUISE GIBBS, JEANETTE BUDAK, ROBYN McADAM, KATHLEEN MATTHEWS, KATHLEEN GILBERT, KAYE CHALLINGER, ROSEMARY BRYANT, MAREA VIDOVICH, ANNETTE GALLAGHER, THERESE JENKINS, JILL KENNEDY, JUDY GIAROLA, ANN ARTHUR, PAMELA WRIGHT, SANDRA _YORSTON MARGARET GAGEN, ROSLYN McCOY, JOHN BROWN and

ENID JENKINS

Respondents

KEELY J.

REASONS FOR JUDGMENT

On 21 January 1987 an order was made under s. 141 of

the Conciliation and Arbitration Act 1904, (the Act) calling

upon the respondents to show cause why certain orders should

not be made, including the following:-

ty

"(c) An Order directing that the first Respondent perform and observe the Rules of the CRoyal Australian Nursing] Federation by ceasing and refraining trom holding herself out

as:

(1) A member of the Federal Council.

(iil) Federal President or the Federation.

(d) An Order directing that each of the second to seventeenth Respondents perform and observe the Rules of the Federation by ceasing and refraining

from treating or vecognising the first Respondent as:

(1) A member of the Federal Council; (ii) Federal President of the Federation." The matters dealt with in these reasons for judgment are those raised by paragraphs (c) and (d) of the rule to show cause, as to which the court had ordered that the

questions raised by them be heard and determined separately

from the questions raised by paragraphs (a) and (b).

Mr. M. Moore and Mr. B. Mueller, both of counsel, appeared for the applicant. The fourth, fifth, tenth and eleventh respondents took no active part in the hearing although they had each entered an appearance and were informed of the date of the hearing. Dr. Buchanan, 9Q.C. and Mr. Strugnell, of counsel, appeared for all of the other

respondents (the fifteen respondents) to oppose the making of

the orders.

The fifteen respondents accepted a statement of

"agreed facts" as follows:

"1. The Royal Australian Nursing Federation ("the Federation") is an organization

of employees registered under the Conciliation and Arbitration Act 1904.

2. The applicant is a member of the Federation.

3. The lst to 17th respondents are members of the Federation and under an obligation to pertorm and observe the rules of the Federation.

4, The and to 17th Respondents are members

of the Federal Council of the Federation.

5. At all material times before 9th September 1986, the lst respondent was President of the Victorian Branch of the Federation, a member of the Federal

Council and Federal President of the Pederation.

6. The lst respondent has at all material times since 9th September 1986 continued to hold herself out as:-

(a) amember of the Federal Council;

(b) President of the Federation."

In addition, they had admitted in their "contentions

of fact" that:-

"(a)

(b)

the eighteenth and nineteenth respondents are members

of the Federation; and

on 9 September 1986 the first respondent resigned from

the position of Branch President of the Victorian

Branch of the Federation."

Further, the applicant deposed "that the tenth respondent Therese Jenkins has accepted the appointment as President of

the Victorian Branch of the Federation". That statement was not contradicted by other evidence and the applicant was not

cross-examined. The first respondent, Miss Gibbs, deposed in an affidavit that she had resigned her "position as President

of the Victorian Branch of the Federation and Chas} since

that date held no office in the Federation save for that of

Federal President. No successor to that office has been

elected since the 10th day of September 1986."

The rules of the Federation were put in evidence and it is convenient to set out at this point the following

provisions in the Federal Rules:-

"14 - Voting at Federal Council

(a) The Federal Council shall consist of the Branch President and one Councillor from e¢ach Branch of the Association who shall be elected by

secret ballot as provided by these rules.

(c) Each member of the Council shall be

entitled to vote in deliberations of the Federal Council.

(d) In the event of any member of the Council being unable to attend a Federal Council meeting ... the Branch Council of such Branch Cthe Branch she

represents on the Federal Council] may appoint a proxy ...

(f) (1) For the purposes of voting each Branch shall be entitled to a

minimum of two (2) votes.

30 - Removal from office of Federal councillors and officers

(a) The Federal Council may remove from office any officer or member of the Pederal Council at a meeting of the Federal Council to which the person concerned has been summoned in writing signed by the Federal Secretary or Federal President to show cause why he or she should not be soa removed. Provided that no such person shall be removed from office unless he or she has been found guilty of misappropriation of the funds of the Association, a substantial breach of the rules of the Association, or gross misbehaviour or gross neglect of duty, or has ceased, according to these

rules, to be eligible to hold the office.

22+ Executive Committee

(a) There shall be an Executive Committee comprising: - (1) the Federal President, two

Vice-Presidents and Treasurer; (ii) the Federal Secretary; and

(111) the Branch President of each Branch which is not already represented on the Executive Committee pursuant to (1) hereot by virtue of a member of that Branch being Federal

President, Vice-President or Treasurer; ...

(aa) If any member of the Executive Committee is unable to attend a meeting or a part of a meeting of the Executive Committee the other member of Federal Council from the Branch she represents may attend such meeting or part of such meeting as proxy for her

and vote on her behalf. This sub-rule

has erfect notwithstanding any other provision in the Rules.

(d) A quorum for a meeting of the Federal Executive shall be a simple majority of members or proxies attending pursuant to sub-rule (aa) of this Rule provided that those persons, other than the Federal Secretary and Assistant Federal Secretary (if any) represent not less than fifty percent

of the total membership of the Association.

23 - Officers of the Association

The Federal Officers of the Association shall be the President, two Vice-Presidents,

the Secretary and the Treasurer.

24 - Duties of the President

The President shall. in addition to other

duties of the office defined elsewhere in the Rules -~

(a) preside at all Meetings of the Council and preserve order.

(b) upon confirmation of the Minutes, sign

the Minute Book in the presence of the Meeting.

Cc) represent the Association as ats principal officer when required to do

30 by the Federal Council or Executive Committee.

peer

39 - Officers to be elected

(a) The Officers Csicl of President, two Vice Presidents and Treasurer shall be elected by secret postal ballot of duly elected members of the Federal Council in accordance with these Rules; the offices of Federal Secretary and Assistant Federal Secretary (if any) shall be elected by secret postal ballot of the members of

the Association in accordance with these Rules.

(b)

(d)

Qualifications for otfice and nomination

A candidate for the position of President. Vice-President or Treasurer 3hall have been a member of the Aszoc1lation for a period of one year immediately preceding the date or nomination for office provided that only persons who are elected members of the Federal Council in accordance with Schedule A of these Rules shall

be eligible to mominate for such positions.

No person who holds office or any paid position in any other Association, Organisation or Union with industrial objects shall be eligible to nominate for or hold office in the Royal

Australian Nursing Federation other than ....

A person elected as Federal Secretary or Assistant Federal Secretary shall not be eligible to hold or continue to hold any other elected office in the Association to continue as a member of any Branch Council or to be employed or continue to be employed in any

capacity by any Branch of the Association. ...-

42 - Term of office

(a)

(a)

The President shall hold office for a term of two years, and shall then be

eligible for re-election for a further term ot two years. A person shall not be eligible for election as President for more than two successive terms.

Notwithstanding the provisions of Sub-Rules (a), (b) and (c) hereof, the President, Vice Presidents and Treasurer shall assume office on the lst April in the year of their biennial election ....

46 ~ Extraordinary vacancies

(a) If for any reason the position of any of the offices of the Association becomes vacant between the normal elections referred to in the foregoing provisions of these rules such vacancy

shall be filled in the following manner ;

(1) If the vacancy occurs within six calendar months of the first day of February of the year in which an election for such office would be held in accordance with these rules the Federal Council may

appoint one of its members to fill such a vacancy in the office of President, Vice President or

Treasurer ..."

It may be said immediately that the rules of the Federation are not easy to construe; during the examination of the rules in the hearing, various possible difficulties in the application of the rules were the subject of submissions

and there was some shifting of ground by counsel.

The applicant contended that, upon her resignation from the position of President of the Victorian Branch, Miss Gibbs "thereupon ceased to be a member of the Federal Council

and ceased to be eligible to be Federal President of the

Federation".

Dr. Buchanan did not submit that Miss Gibbs, who was no longer a branch president and was not a councilior from a

branch, validly remained as a member of Federal Council. In

my opinion she is not a member of the Federal Council and, as

it is members of that Council who "shall be entitled to vote in deliberations of the Federal Council" (sub-rule I14(c)), she 13 not entitled to vote in Federal Council. It follows that orders should be made in the terms of paragraphs (c)(i)

and <d)(1) of the rule to show cause.

It is clear that the Federal President must be a member of the Federal Council in order to be a candidate for election as Federal President (sub-rule 40(a)). The applicant has submitted that the scheme of the rules is that @ person elected as the Federal President must continue to be @ member of Federal Council in order to continue to hold the office of Federal President. Accordingly, Miss Gibbs, on ceasing to be a member of the Council, ceased to be eligible to hold the office of Federal President. In this connexion 1t was submitted that sub-rule 40(a) should not be read in a literal and narrow way and reliance was placed upon a number of rules relating to the office of Federal President and her

role in the affairs ot the Federation.

I am not prépared to uphold the applicant's submission. In my opinion sub-rule 40(a) can not fairly be construed as requiring a person, who was validly elected as Federal President, to remain a member of the Federal Council in order to continue to hold the office of Federal President. Sub-rule 40(a) deals only with "a candidate" for certain

offices; it specifies certain requirements before persons

lo.

become "eligible to nominate for such positions". It says nothing expressly on the subject or whether a person = must remain a member of the Federal Council in order to "continue to hold... office": nor can such a requirement, in my

opinton, be fairly said to be implied in the sub-rule.

Rule 40 is headed "Qualifications for office and nomination". The terms of aub-rule 40(a) contrast sharply with those of sub-rule 40(d). The latter sub-rule expressly provides that a person elected "as Federal Secretary ... shall not be eligible to hold or continue to hold any other elected office ..." (see also the express use, 1n sub-rule 40(b), of the words "to nominate tor or hold office in ..."). The insertion of those express words in sub-rules 40(b) and

(d} runs counter to the submission by the applicant that = an

implication should be read into sub-rule 40(a).

The applicant's counsel submitted that, if the fifteen respondents were correct in their contention that the rules

did not require that the Federal President continue to be a

member ot the Federal Council, then the rules become

unworkable. Reference was made to various rules e.g. sub-rule 14(c) and 14(f)(iv) - as to voting in Federal Council; rule 19 - as to a quorum; rule 48C - as to the

conduct of meetings; and sub-rule 22(aa) - as to proxy voting on the Executive Committee, of which the Federal President is

a member. It may be noted in passing that the "Executive

ll.

Committee" is elsewhere in the rules (e.g. sub-rule 22(d) and

rule 26A) referred to as the "Federal Executive", but 1t was

accepted by the parties that those expressions refer to the

one committee, notwithstanding the use ot different names.

I accept Dr. Buchanan 3 submission that the rules are not unworkable; also his submission that those difficulties which exist are not such as to lead the court to hold that there is an implication - either in sub-rule 40(a) or in the rules generally - that a person must remain a member of

Federal Council in order to continue to hold the otfice of

Federal President.

The Act does not require the Federation to have rules which would lead to the removal from office - either automatically or otherwise - of a Federal President who. having been elected to that office as a person eligible because she was a Branch President, later resigned that office. There may be good reasons for the view that the rules should provide for the Federal President to lose office in those circumstances. On the other hand. there may be good reasons for permitting a person who was validly elected as Federal President to continue to hold that office for a relatively short period after resigning her office as Branch President. The considerations which support each of the two opposing views are matters which can be investigated and

taken into account by the Federation's rule making body if it

12.

wishes to consider amending the rules as to that subject matter. The court's function 18 to express an opinion as to

the meaning of the rules in their present form.

It will be clear from what has been said earlier, in comparing the terms of the provisions in sub-rules 40(a) and 40(d) respectively, that in my opinion sub-rule 40(a) does not have the meaning for which the applicant contends. Both the heading to rule 40, and the content of that rule as a whole, show that it is a provision which deals specifically not only with "qualifications for nomination" (as 1s done in sub-rules 40(a) and {c)) but also with "qualifications for office" (as 13 done in sub-rules 40(b) and (d)). Without assuming that the person drafting rule 40 had all the qualifications and experience of a parliamentary counsel, the terms of the sub-rules make 1t clear that the draftsman plainly had in mind the distinction between. on the one hand, qualifications for nomination as a candidate (see sub-rule 40(a)), and, on the other, qualifications to "hold office"

(sub-rule 40(b)) or "to hold or continue to hold ... office" (sub-rule 40(d)).

Accordingly, although the proper construction of the

rules of the Federation 1s a matter of considerable difficulty, I have reached the conclusion that the rules do not manifest an intention that the Federal President shall

only be entitied to continue to hold that office whilst she

13.

remains an "elected member of the Federal Council" (sub-rule 40(a)). That opinion is based upon the construction of that

sub-rule. read in the light of both 1ts immediate context and the context of the rules as a whole, including those rules

cited by the applicant as tending to support her contention

as to the meaning of the rules.

In reaching that conclusion I have accepted Dr. Buchanan's submission that sub-rule 40(a), in providing that "only persons who are elected members of the Federal Council --» Shall be eligible to nominate for such positions", means that the candidate must be eligible to nominate not only on the date when the nomination 1s lodged with the Returning Officer but, as he expressed it, "right up to the point when the election 1s held". It follows that, dealing with the hypothetical case raised by Mr. Moore during his submissions, amember who was "eligible to nominate" at the date of lodging her nomination, but who resigned as Branch President immediately after so doing (i.e. before the election), would not be "eligible to nominate" for election to the position of Federal President. Applying that construction of the rules to the facts of this case, Miss Gibbs did not cease "according to these rules, to be eligible to hold the office"

of Federal President within the meaning of those words of

sub-rule 20(a).

14.

It may be added that the applicant's contention 1s not assisted by Mr. Moore''s submission that "where the holder of the office resigns from a position which 1s a condition precedent to the continued occupation of another position, that is an etfective resignation from the second position." That submission is based upon the view, which has already been rejected, that the rules required that Miss Gibbs continue to occupy the position of Branch President as a

condition precedent to her continued occupancy of the office

of Federal President.

The applicant, having failed to establish that Miss

Gibbs is not entitled to hold "herself out as... Federal President of the Federation", 1t follows that the court will not make elther of the orders set out in paragraph (c)(ii) and paragraph (d)(ii) of the rule to show cause. However, as

already stated, orders will be made in the terms of

paragraphs (c)(i) and (d)(i).

The foregoing is sufficient to dispose of the matters falling for decision at this stage. However, having regard to the arguments which have been advanced and to the particular circumstances of this case, it may be desirable to

veter briefly to some of the other matters as to which

submissions have been advanced.

15.

It was submitted by the applicant that Miss Gibbs had

automatically lost office as Federal President. Even it, contrary to the opinion already expressed, Miss Gibbs was, by reason of her resignation from the position of President of the Victorian Branch, no longer eligible to hold the office of Federal President, in my opinion the rules do not show an intention that she should automatically cease to be Federal President. I have formed that opinion as a matter of construction of the rules generally and of sub-rule 20(a) in particular. That sub-rule makes specific provision for the removal from office, by the Federal Council, of any officer, including the Federal President, where she "has ceased, according to these rules, to be eligible to hold the office". That opinion gains some support from what was said by Woodward and Northrop JJ., with whom Smithers ACJ. agreed, in

Allshorn v Stapleton (1984) 4 FCR 236 at 241.

Shortly after the commencement of the hearing, Mr. Moore asked that the rule to show cause be amended by the

addition of the tollowing proposed orders:

"That the second to seventeenth respondents and each of them perform and observe the rules of the Federation by:

(a) causing the first respondent to be summoned to a meeting of the Federal Council in accordance with rule 20;

(b) determining whether the first respondent has ceased, according to the rules, to be eligible to hold office as:

16.

(1) a member ot Federal Council (il) Federal President,

(c) removing the first respondent from the office or offices aforesaid as the case may be in the event that 1t is determined that the first respondent has ceased, according to the rules, to be eligible to hold either or both those offices."

The amendments will not be made. Insofar as those proposed additional orders relate to Miss Gibbs' office as a member of Federal Council, it is umnecessary to enlarge the rule to show cause because orders are to be made as to those Matters. Insofar as they relate to Miss Gibbs' office as Federal President, the proposed orders would not be made because of the opinion already expressed that the first

gespondent has not "ceased, according to the rules, to be

eligible to hold office as ... Federal President".

However, even 1f that opinion had not been reached, the court would have exercised its discretion against making orders on those matters. The discretion would have been so exercised for reasons similar to those referred to by Woodward and Northrop Jd. in Allshorn v Stapleton (1984) 4 FCR 236. Their Honours (at 241) referred to the fact that in that case, "the Association was now well advanced towards holding the State elections in New South Wales and South

Australia ... we would have refused the orders sought".

L/.

As to the factual position in the present case Mr. Moore accepted "the new President will assume office on 1 April £19871. The time required for the holding of a special council meeting is 28 days." In those circumstances, even if the applicant had succeeded on the other matters and judgment had been given on the day of the hearing, the court would have refused to make the orders, in the exercise of its discretion. based upon the extremely short period of time that would have remained between the date of any decision by

the Federal Council and the assumption of office by the new

Federal President.

I certify this and the preceding sixteen pages to be a true copy of the Reasons for Judgment of his Honour Mr Justice Keely.

Associate : Males

Date : 19 March, 1987

18.

Dates of Hearing

Counsel for the Applicant Solicitors for the Applicant Counsel for the Respondent 2

Solicitors for the 4th and Sth Respondents:

Solicitors for the 10th and llth Respondents:

Solicitors for all Respondents other than 4th, Sth, 10th and 11th:

10 February, 1987

Mr. M. Moore Mr. B. Mueller

Cedric Ralph, Peirce Dawson

Dr. P. Buchanan Q.C. Mr. W. B. Strugnell

John & Green

Slater & Gordon

Ryan Carlisle Needham & Thomas