Koc v Diamond (No 2) [2022] FCA 640

Koc v Diamond (No 2) [2022] FCA 640

The applicant is not a National Office Bearer under the union rules, therefore the National Executive is not authorised to hear and determine the charges; any purported delegation by the Branch Executive to the National Executive is ineffective as it would contravene the rules, which require Branch Executive determination and provide for specific appeal processes.

Parties
Applicant: Tarik Koc; First Respondent: Mark Diamond; Second Respondent: Shayne Kummerfield; Third Respondent: Luba Grigorovitch; Fourth Respondent: James Joseph Styles; Fifth Respondent: William Lekkas; Sixth Respondent: Leanne Holmes; Seventh Respondent: Phil Altieri; Eighth Respondent: Keith McMahon; Ninth Respondent: Trent Howard; Tenth Respondent: Greg Tatnell; Eleventh Respondent: Victor Moore; Twelfth Respondent: Peter Allen; Thirteenth Respondent: Alex Claassens; Fourteenth Respondent: Ric Bean; Fifteenth Respondent: Joshua Isaac Dekuyer; Sixteenth Respondent: Craig McKinley; Seventeenth Respondent: Darren Brett Phillips; Eighteenth Respondent: John Anderson; Nineteenth Respondent: Dave Esqueria; Twentieth Respondent: Noel Morris; Twenty Second Respondent: Craig Turner; Twenty Third Respondent: David Babineau; Twenty Fourth Respondent: Tom Brown; Twenty Fifth Respondent: Farren Campbell; Twenty Sixth Respondent: Darren Galea
Jurisdiction
Australia
Judgment Date
19 May 2022
Procedural Posture
Industrial Law Application / Expedited Trial, Judgment
Outcome
Application granted
Legal Topics
Union Rules Interpretation, Disciplinary Proceedings Within Unions, Delegation of Powers Under Union Rules, Office Bearer Classification
Industrial Law Employment Law Union Rules Interpretation Disciplinary Proceedings Within Unions Delegation of Powers Under Union Rules Office Bearer Classification

Case Brief

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Parties

Tarik Koc

Applicant

Mark Diamond

First Respondent

Shayne Kummerfield

Second Respondent

Luba Grigorovitch

Third Respondent

James Joseph Styles

Fourth Respondent

William Lekkas

Fifth Respondent

Leanne Holmes

Sixth Respondent

Phil Altieri

Seventh Respondent

Keith McMahon

Eighth Respondent

Trent Howard

Ninth Respondent

Greg Tatnell

Tenth Respondent

Victor Moore

Eleventh Respondent

Peter Allen

Twelfth Respondent

Alex Claassens

Thirteenth Respondent

Ric Bean

Fourteenth Respondent

Joshua Isaac Dekuyer

Fifteenth Respondent

Craig McKinley

Sixteenth Respondent

Darren Brett Phillips

Seventeenth Respondent

John Anderson

Eighteenth Respondent

Dave Esqueria

Nineteenth Respondent

Noel Morris

Twentieth Respondent

Craig Turner

Twenty Second Respondent

David Babineau

Twenty Third Respondent

Tom Brown

Twenty Fourth Respondent

Farren Campbell

Twenty Fifth Respondent

Darren Galea

Twenty Sixth Respondent

Procedural Posture

Industrial Law Application / Expedited Trial, Judgment

Legal Issues

  1. 1 Whether the National Executive of the Union is authorised under the union rules to hear and determine charges of gross misbehaviour against the applicant
  2. 2 Whether the applicant is a Branch or National Office Bearer under union rules
  3. 3 Whether the Branch Executive can validly delegate its function of hearing and determining charges to the National Executive

Ratio Decidendi

The applicant is not a National Office Bearer under the union rules, therefore the National Executive is not authorised to hear and determine the charges; any purported delegation by the Branch Executive to the National Executive is ineffective as it would contravene the rules, which require Branch Executive determination and provide for specific appeal processes.

Court Disposition

Application granted

Orders

  • Declaration: The National Executive of the Union is not authorised under the rules to investigate, hear or determine the charges of gross misbehaviour against the applicant brought on or about 2 October 2021 and the addendum of 11 November 2021.
  • Order: The respondents, as members of the National Executive, must cease and refrain from taking any action to investigate, hear, or determine those charges against the applicant.