Skourdoumbis v Maher [2001] FCA 1922

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1093 of 2001 BETWEEN: LEO SKOURDOUMBIS

Applicant AND: TONY MAHER, JOHN SUTTON, VIC FITZGERALD,

TREVOR SMITH, ALBERT LITTLER, REG COATES, BRUCE WATSON, LINDSAY FRASER, MICHAEL O'CONNOR, CHRIS NORTHOVER, KEVIN REYNOLDS, ALEX BUKARICA, GREG WILLIAMS, BRAD PARKER, ED HARRIS, MICHAEL HARITOU, MICHAEL MITTEN, DAVE KIRNER, JIM EMERY, FRANK VARI AND JOHN

MAITLAND

Respondents

JUDGE: FINKELSTEIN J DATE OF ORDER: 16 OCTOBER 2001 WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The respondents, other than the Fifteenth, Seventeenth and Twentieth respondents, be and they hereby are restrained from passing any resolution at the meeting which purports to be an extraordinary meeting of the Divisional Conference of the FFTS

Union Division convened by notice dated 8 October 2001.

Z. The respondents, other than the Fifteenth, Seventeenth and Twentieth respondents, be and they hereby are restrained from giving effect to any resolution that may have been passed at the meeting which purports to be an extraordinary meeting of Divisional

Conference of the FFTS Union Division convened by notice dated 8 October 2001.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1093 of 2001 BETWEEN: LEO SKOURDOUMBIS

Applicant AND: TONY MAHER, JOHN SUTTON, VIC FITZGERALD,

TREVOR SMITH, ALBERT LITTLER, REG COATES, BRUCE WATSON, LINDSAY FRASER, MICHAEL O'CONNOR, CHRIS NORTHOVER, KEVIN REYNOLDS, ALEX BUKARICA, GREG WILLIAMS, BRAD PARKER, ED HARRIS, MICHAEL HARITOU, MICHAEL MITTEN, DAVE KIRNER, JIM EMERY, FRANK VARI AND JOHN

MAITLAND Respondents JUDGE: FINKELSTEIN J DATE: 16 OCTOBER 2001 PLACE: MELBOURNE

REASONS FOR JUDGMENT

The Construction, Forestry, Mining and Energy Union is an organisation of employees registered under the Workplace Relation Act 1996 (Cth). The union is divided into a number of divisions, one of which is the FFTS Union Division. This division is divided into various Divisional Branches, including a Victorian Divisional Branch. Currently there is serious internal conflict within this branch. This proceeding is one of a number that has been commenced as a result of the conflict. A report to the National Executive Committee of the union describes the conflict as a bitter dispute between "factions" resulting from alleged financial impropriety. The report claims that the FFTS Divisional Office is "dysfunctional". The report also says that the Division has not had the service of any official

since early this year, and all work that has been performed has been by the National Office.

The applicant is the Assistant Secretary of the Victorian Branch. The respondents include members of the National Executive Committee of the union, persons purportedly elected to the FFTS Union Divisional Conference and the National Secretary of the union. Initially the present application sought an interlocutory injunction to restrain the holding of

an extraordinary meeting of the Divisional Conference of the FFTS Union Division. The

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meeting began yesterday morning and is due to end this afternoon. During the course of the hearing I enquired whether the parties were prepared to treat the application as a final hearing, because to a large extent the outcome of the application depends upon the proper construction of the union's rules and the parties have had the opportunity to put full argument on that issue. The parties agreed to adopt this course, and thus I am in a position finally to dispose of the case. Because the matter is urgent and I have formed a clear view on the outcome of this case, I.am able to hand down judgment today. In consequence, however, my

reasons will be brief.

The event_that brings the parties to court is the convening of the extraordinary meeting of the Divisional Conference. According to the Divisional Rules, a Divisional Conference must meet at least once in every two years. The last meeting was held more than

three years ago, so a meeting is now well overdue.

The applicant makes two complaints about the holding of the extraordinary meeting. First, the meeting was convened by the Acting Divisional Secretary, Mr Haritou, and the applicant contends that Mr Haritou did not have power to convene the meeting. The second complaint is that according to its agenda, the extraordinary meeting proposes to deal with matters which it does not have jurisdiction to consider. To follow this submission it is necessary to identify the items of business that are before the meeting. The items are: the election of a new Divisional Executive; the consideration of charges laid against the applicant (Mr Haritou has proposed that the charges be heard today); and the following "discussion points" which are set out in a letter to the FFTS Union Divisional Executive: "Victorian internal dispute; Legal cases in Federal Court; Award matters; Industry plan; Redundancy funds; Agency agreements; FIRST; Integration; Divisional Finances; Royal Commission; Organising Strategy; Election of Divisional Executive; Other agenda items as

submitted by Divisional Branches".

The Divisional Rules contemplate that there may be two types of meetings of the Divisional Conference, ordinary meetings and extraordinary meetings. The Divisional Secretary is charged with the power to convene an extraordinary meeting. There are only two circumstances in which an extraordinary meeting of the Divisional Conference can be convened, The first is when there has been a requisition for such a meeting by three or more

Divisional Branches or Divisional Branch Committees of Management: rule 7(2)(i) The

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second is "to consider any matter or matters which is [sic] considered sufficiently urgent to

warrant the holding of an extraordinary meeting of the Divisional Conference": rule 7(2)(ii).

Mr Haritou purported to convene the extraordinary meeting which is presently underway pursuant to rule 7(2)(ii). This is apparent from his notice of meeting dated 8 October 2001.

To deal with Mr Haritou's power to convene the meeting, it is first necessary to consider what business may be conducted at an extraordinary meeting convened under rule 7(2)(ii). In particular, the issue that must be resolved is whether business that may not be sufficiently urgent to warrant the convening of an extraordinary meeting in its own right can

nonetheless be dealt with.

In dealing with this issue the respondents say that it is necessary to have regard to tule 7(3). They argue that this rule shows that other business may be considered at the meeting. According to the heading, rule 7(3) deals with the agenda for meetings of the Divisional Conference. It provides that: (a) the Divisional Executive shall compile the agenda (rule 7(3)(a)); (b) any Divisional Branch or Divisional Branch Committee of Management may place any matter on the agenda provided it has given six weeks' notice (rule 7(3)(b)); (c) the Divisional Secretary shall forward a copy of the agenda to each Divisional Branch at least one month before the meeting (rule 7(3)(c)); (d) a member of the Divisional Conference may add a matter to the agenda at the conference if a majority of members agree (rule 7(3)(d)); and (e) the Divisional Conference may itself deal with urgent

business, although the business is not on the agenda (rule 7(3)(e)).

I am not persuaded that rule 7(3) provides much assistance to the resolution of the issue at hand. It is clear that rule 7(3)(a) has no application to an extraordinary meeting convened by the Divisional Secretary under rule 7(2)(ii). It is unlikely that rules 7(3)(b) and 7(3)(c) were intended to apply to an extraordinary meeting, if only because the time limits set by those provisions would be impossible to apply to an urgent meeting. As rules 7(3)(a), (b) and (c) do not apply to extraordinary meetings, it is open to conclude that none of the provisions of rule 7(3) are intended to apply. Indeed, there is no need for an agenda for an extraordinary meeting because the Divisional Secretary's notice of such a meeting will

inevitably set out the urgent items of business that are to be considered. Even if, contrary to

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my view, rules 7(3)(d) and 7(3)(e) were to apply to an extraordinary meeting, those rules permit members at the Divisional Conference to add matters for the consideration of the

meeting but they do not empower the Divisional Secretary to add further items of business.

In my view, on the proper construction of rule 7(2)(ii), when the Divisional Secretary convenes an extraordinary meeting to deal with urgent matters, he is not permitted to place before the meeting any items that are not urgent. Only items that would warrant the

convening of an extraordinary meeting under rule 7(2)(ii) can be considered.

It will be necessary to return to the consequence of this finding in a moment. First, however, I propose to deal with the ability of the Divisional Conference to consider the election of a new Divisional Executive and whether it can deal with the charges that have

been brought against the applicant.

The procedures for the election of the Divisional Executive are set out in rule 11. This rule provides that the Divisional Executive shall consist of a number of officers who shall be elected by and from the Divisional Conference: rules 11(1)(a)(ii) and (b). Each elected officer (except for the Divisional Secretary) "shall hold office from 1996 and every subsequent four (4) years thereafter until their successors are elected": rule 11(1)(a)(ii). Each Divisional Secretary shall hold office "for a term of four years and thereafter until his successor be elected which last mentioned election shall take place at the first ordinary meeting of the Divisional Conference occurring after the expiration of four years from the date upon which he was formerly elected": rule 11(1)(b). 1 draw attention to this rule for the following reasons. First, it specifies that an election of a Divisional Secretary must take place at an ordinary meeting of the Divisional Conference. Second, it is implicit that the election of the other officeholders will also take place at an ordinary meeting. Third, each officeholder continues in office notwithstanding the expiry of his term of office, so they will still be

elected officials although their terms of office have expired.

It is also necessary to note rule 11(2)(b) which provides as follows:

"Nominations for election to the position of Divisional President, two Divisional Vice-Presidents, Assistant Divisional Secretary, Divisional Secretary and two Additional Divisional Executive Members shall close at a time to be fixed by the Divisional Returning Officer at the ordinary meeting of the Divisional Conference when such elections are due."' (my emphasis)

The rules to which I have referred make it tolerably clear that elections for the Divisional Executive must take place at an ordinary meeting. Therefore, there can be no

election of officeholders at an extraordinary meeting.

This is not a surprising conclusion. It is not to be supposed that an extraordinary meeting convened as a result of a requisition under rule 7(2)(i) would deal with elections. This is because the rules relating to the elections of officeholders are self-contained and could

not be affected by any resolution at a meeting convened by requisitionists.

The same is true of an extraordinary meeting convened pursuant to rule 7(2)(ii), which is confined to dealing with urgent business. I do not believe that the draftsman of the rules contemplated that there would be any particular urgent matter relating to an election that would need to be dealt with under rule 7(2)(ii). The rules specify the duration of office of each officeholder, and those terms cannot be altered by the Divisional Conference, except when the rules are themselves altered under rule 30. The rules assume that there will be elections every four years and that there will be an ordinary meeting of the Divisional Conference where those elections are held. If no such meeting is convened, application can be made to the court for appropriate orders to secure the elections. In the meantime the

Divisional Executive remains in office and can transact business.

Turning to the charges that have been laid against the applicant, there are two reasons why they cannot be considered at any meeting of the Divisional Conference. The first is that the Divisional Conference is not a forum where these charges can be heard. Rule 14 deals with the bringing of charges against members. First, it sets out the various charges that may be brought: rule 14(1). Then it provides that if a charge is addressed to the Divisional Secretary, that officer "may if he thinks fit, and shall, if directed by the Divisional Conference, summon the member charged before the Divisional Executive or Divisional Branch Executive": r14(2). In the case of a charge addressed to the Divisional Branch Secretary, it is provided that that officer "may if he thinks fit, and shall, if directed by the Divisional Branch Committee of Management, summon the member charged before the

Divisional Branch Executive." rule 14(2).

It is also necessary to notice two other rules, rule 14(4) and part of rule 14(9), which

relevantly provide:

"(4) The Divisional Conference, Divisional Executive, Divisional Branch Committee of Management and Divisional Branch Executive shall have power to hear and determine charges under this Rule. A charge once made in accordance with sub-rule (2) of this Rule may only be withdrawn by leave of the tribunal to which the charge has been referred to [sic] for investigation."

(9) An appeal shall lie at the instance of the member charged from the Divisional Branch Executive to the Divisional Branch Committee of Management and from the Divisional Branch Committee of Management to the Divisional Conference, or in the case of the a charge heard in the first instance by the Divisional Executive, from the Divisional Executive to the Divisional Conference..."

The scheme disclosed by rule 14 is that the body that has power to first consider a charge against a member is either the Divisional Executive or the Divisional Branch Executive. The Divisional Conference and the Divisional Branch Committee of Management have power to deal with a charge only in the event of an appeal brought to one of these bodies under rule 14(9).

In this context, I read rule 14(4) not as conferring original jurisdiction on each of the bodies mentioned, but as conferring original jurisdiction in the case of bodies that are given original jurisdiction under rule 14(2) or appellate jurisdiction in the case of bodies that are given appellate jurisdiction under rule 14(9). It follows that the Divisional Conference cannot, as a first instance tribunal, consider the charges that have been brought against the

applicant.

In any event, and this is the second reason, the summons served on the applicant under rule 14(2) requires him "to attend before the Divisional Executive and face the [specified] charges as laid by [a] member [of the union]". As I have indicated, the Divisional Executive has jurisdiction to deal with charges that are properly laid, but the Divisional

Conference has no role to play in the matter.

Having removed both the election of a new Divisional Executive and the charges

against the applicant from the business before the extraordinary meeting, the only matter that

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remains to be considered is whether any of the other "agenda" items are "sufficiently urgent to warrant the holding of an extraordinary meeting". In this connection I am prepared to assume, without deciding, that a matter will be "sufficiently urgent" if it appears to be sufficiently urgent to the Divisional Secretary, at least provided he has given honest consideration to the issue. I do not mean to deny the possibility that a matter will only be "sufficiently urgent to warrant the holding of an extraordinary meeting" if it would be so regarded by an objective bystander. However, for the purposes of this case I need not resolve

that issue.

On the question of "sufficient urgency", I must say that the evidence is somewhat sparse. For his part, the applicant has said next to nothing. In part this may be because some of the "agenda" items are so unclear that any discussion about them is almost impossible in the absence of some further explanation of their meaning. There are, however, a number of factors that suggest that the "agenda" items are not relevantly urgent. First, in Mr Haritou's letter convening the meeting he only identified the election of the new Divisional Executive and the hearing of the charges as matters which required urgent attention. Second, in the course of his submissions, counsel for Mr Haritou conceded that some of the items could not be regarded as urgent, a concession which seems to be inevitable. Third, Mr Haritou did not call evidence to support an argument that the remaining "agenda" items were urgent. This is not an unimportant consideration. When I suggested to the parties that they might wish to treat the interlocutory application as the trial of the proceeding, I identified as one of the areas where there was a lack of evidence, the matter of the urgency of the "agenda" items. Notwithstanding this, the respondents were prepared to proceed without adducing further evidence. Finally, there is the fact that the items of business are described as "discussion

points", suggesting that no action may be required in respect of them.

It is true that the evidence is not all the one way. I have already referred to the interim report to the National Executive which asserts that the FFTS Divisional Office is "dysfunctional". I take this to mean that the Divisional Office is either not operating at all, or not operating satisfactorily. No doubt this must be a matter of real concern to the National Executive. No doubt it is a matter that must be rectified. But this does not mean that the "agenda" items are so urgent that they justify being taken to an extraordinary meeting and it is difficult to see how Mr Haritou could have formed the view that they were, if he had

considered the matter. It appears that there have been problems within the Victorian Branch

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for more than a year. If important matters had not been attended to they could have been considered at an ordinary meeting convened by the Divisional Executive under rule 7(1). No such meeting was called. That confirms my first impression that the "agenda" items are not sufficiently urgent for the Divisional Secretary to deal with them under rule 7(2)(ii). And, in

any event, on the evidence I do not believe that Mr Haritou regarded them as urgent.

For the foregoing reasons, the conclusion that I must reach is that the meeting which currently purports to be an extraordinary meeting of the Divisional Conference is not a meeting that has been convened in accordance with the rules of the FFTS Union Division. Nonetheless, I will not restrain the continuation of the meeting. I suppose it to be the case that the members have much to discuss. However, it is appropriate that the respondents be enjoined from passing any resolution at the meeting or implementing any resolution that has been passed as if at a properly convened meeting of the Divisional Conference. I will make

orders to that effect.

I certify that the preceding twenty- five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein,

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Associate: oe = —

Dated: 16 October 2001

Counsel for the Applicant: Mr H Borenstein

Solicitor for the Applicant: Maurice Blackburn Cashman Counsel for the First to Ninth, Eleventh, Mr R Whyburn

Twelfth and Twenty-first Respondents:

Solicitor for the First to Ninth, Eleventh, RL Whyburn & Associates Twelfth and Twenty-first Respondents:

Counsel for the Thirteenth, Fourteenth and Mr S Howells Sixteenth Respondents:

Solicitor for the Thirteenth, Fourteenth and Gill Kane & Brophy Sixteenth Respondents:

Counsel for the Eighteenth and Nineteenth Mr D Langmead Respondents:

Solicitor for the Eighteenth and Nineteenth Duncan Basheer Hannon Respondents:

Date of Hearing: 15 October 2001

Date of Judgment: 16 October 2001