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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N VT2453
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT WILLIAMS
D2001/15
APPLICATION UNDER SECTION 188(1)(b)
OF THE ACT FILED BY THE SOCIETY OF
AUSTRALIAN SURGEONS FOR REGISTRATION
AS AN ORGANISATION OF EMPLOYEES
OBJECTIONS THERETO
MELBOURNE
10.33 AM, WEDNESDAY, 30 APRIL 2003
Continued from 28.4.03
PN10351
THE SENIOR DEPUTY PRESIDENT: Mr Parry?
PN10352
MR PARRY: If your Honour pleases. If your Honour pleases, the application made is to the effect that you stop hearing these proceedings. And what has been raised are one major technical issue, as I think it is described in a couple of what I will describe as lesser ones. If granted, the application of the surgeons would come to an end without consideration of the merits, and the issue of whether this organisation can provide an option for surgeons to progress their interests in an industrial framework.
PN10353
The surgeons have given earnest consideration to technical matters when first adverted to and raised as issues in October 2002. Our position broadly is that the surgeons can amend their rules, and there is a valid application. Now, I have, your Honour, reduced my submissions largely to writing, and it might expedite the process if I handed that up and distributed it at the bar table.
PN10354
THE SENIOR DEPUTY PRESIDENT: Yes, I think I should mark it.
PN10355
PN10356
MR PARRY: Now, your Honour, I am not going to read this to you, I am just going to take you through the salient points and why we say your Honour should not make any ruling under section 111(1)(g)(iii) at present. Now, under paragraph 2 I have set out in a very broad sense the reasons that have been advanced as I glean them from the transcript of what occurred on Monday. In paragraph 4 I deal with section 111(1)(g). And what is set out thereunder are just the standard propositions with regard to the prima facie right that applicants and notifiers have, and the authorities therein referred to.
PN10357
Your Honour, in the Breadmakers case, allowed for the availability of section 111(1)(g) proceedings in, I think it was a section 204 case, but your Honour also made observations about that part of the Act. If I could hand up a copy of the Breadmakers case to your Honour. I think your Honour's observations appear on page 105.
PN10358
THE SENIOR DEPUTY PRESIDENT: Yes.
PN10359
MR PARRY: Yes. And your Honour makes some observations about section 111(1)(g), refers to Citicorp, refers to a decision ex parte Construction, Forestry and Mining Employees Union, which with our best endeavours we were unable to find. I am not sure whether it was a special leave application or another judgment, but we have no reason to doubt your Honour's summary of it. But your Honour also makes the observation:
PN10360
Can comprehend no reason for such power not also being available to the Commission in proceedings under division 2 of the same part.
PN10361
Now, that would suggest that your Honour has the view that section 111(1)(g) is available in proceedings such as these. Now, your Honour - - -
PN10362
THE SENIOR DEPUTY PRESIDENT: I think there is a subsequent decision in which I actually dealt with the matter as part and parcel of this bread manufacturer's application and the cake and pastry employer's application. I think it follows fairly closely in the same volume of the IRs.
PN10363
MR PARRY: As your Honour pleases.
PN10364
THE SENIOR DEPUTY PRESIDENT: I think as I recall it, I actually exercised the power under section 111(1)(g), and dismissed something, but I may be wrong, but just the recollection I have. I am not taking issue in today's proceedings with the possibility that you may have that power, and, indeed, I am assuming that to be the basis upon which we are here today.
PN10365
THE SENIOR DEPUTY PRESIDENT: That is not being disputed, as I understand it, for the purpose of this hearing in any event.
PN10366
MR PARRY: No, I am not going to raise that argument. However, what I will say is that section 111(1)(g) varies in its scope and the range of applications and matters that can be raised underneath it. Now, what has been raised in this matter is almost like a strikeout application of a similar nature. Indeed, my learned friend, Mr Herbert, described it, I think, at paragraph 10086, in those sort of terms on Monday, when he said there is, in fact, no basis upon which the application can concede as a matter of law. So he says the law is absolutely crystal clear, similar to a strikeout application, and secondly, we don't need any more evidence to deal with those issues.
PN10367
So the position is, in effect, that the application and the society are so fundamentally flawed, there is no basis upon which the application can go ahead, and secondly, no further evidence is going to bear on that matter. Now, that is equivalent to a strikeout application. It is not a discretionary basis upon which this argument has been put, it is a legal one. Now, your Honour has - again I will follow through the exhibit SAS 44. The evidence in paragraph 6 referred to presumably by Mr Herbert, but also by Mr Bromberg, was the evidence of Mr Brazenor, Mr Arnot and Mr Taylor, and that is where the evidence has come from.
PN10368
So the position is that nothing further that the society can do or nothing further that those witnesses can say alters the position that this application cannot succeed. Now, the submissions made have been fairly long on rhetoric, and we say fairly spartan on authorities and on an analysis of the facts. And I suppose our final position ultimately in summary is as set out on page 3 of exhibit SAS44, there is an association, it has made an application to the Commission, and whatever may be the legal analysis, and I am going to take your Honour through that, it can alter its rules, it is not moribund, it is not in a straitjacket.
PN10369
The office holders have acted in good faith. It has not been asserted in this application, nor, indeed, is it apparently relevant, and our position is that the organisation can and should be allowed to take appropriate steps to satisfy matters that may arise. Now, the next heading is facts and law. Now, again, as we point out, not beyond doubt that Messrs Brazenor, Taylor and Arnot, and the surgeons who attended the meetings in June, aren't industrial lawyers, but surgeons who desire to form an association, and in this application it has not been suggested they were acting in bad faith with dishonest motives or not with the intention of forming a society.
PN10370
Now, some of their evidence went to what their views of facts and law were, not uncommon in Commission proceedings. Ultimately the arbiter of what the law is, is yourself. The parties might give their own view of what the consequences of certain actions were, but the Commission will ultimately decide that. Now, then to turn to the events of 23 June 2001. Now, on 23 June 2001, we say a society was created, and it hasn't been contended in these proceedings that it wasn't. They passed a resolution appointing one of their members as chairman, again, unremarkable.
PN10371
They passed a resolution to form a trade union to protect the industrial interests of surgeons, they gave it a name, and they used those words to adopt as a draft constitution the set of rules. We say the first part of the resolution forms an association, and we set out some authority from the VPF case with regard to the forming of an association. I am not going to read your Honour's words to your Honour. I have set out the quote there in full. But accordingly at that time a voluntary association existed, the members of which were bound by the terms of the mutual compact into which they had entered, and that is simply an authority to that effect, which I can hand up the headnote.
PN10372
Again, we say it no more than states the obvious common law with regard to these matters. And the particular quote is simply in the first part of the headnote, so I haven't given your Honour the full decision dealing as it does with the travails of the Presbyterian Church around the turn of the century. Your Honour, the next part of the motion was this adopting as a draft constitution. Now, that has had two possible effects. And we say the first effect was that they were adopted as the actual draft binding constitution, the second possible effect was that the draft set of rules were put before the meeting and adopted as a draft, and were not binding nor adopted as the actual rules.
PN10373
PN10374
MR PARRY: As your Honour pleases. Now, the point, this is to show that the process followed is not a particularly unusual one if the first - I am sorry, the second interpretation is followed. Your Honour also made comments about the adoption of rules, and those comments are set out in paragraph 19, about there being no legal requirements for the VPF to have rules. They were entitled to adopt rules in the form they saw fit. And finally, with regard to Daly, and this occurs, this extract appears in what I have handed up to your Honour, he recognised that after the rules had been settled or deferred, then it was still necessary to appoint officers and, indeed, that is what occurred in the present matter.
PN10375
Now, your Honour has evidence, some evidence of what occurred at that meeting, it has the motions that were passed. Now, your Honour is asked to adopt or interpret what the meeting meant when it did what it did. Now, my learned friends have proceeded on the assumption that what the meeting did was adopt those rules as rules. Now, there has been evidence given by Mr Brazenor and Mr Arnot about what they thought were the rules and what they thought the meeting had done, and so forth.
PN10376
What is important for this application, based as it is on the technical issue, is what actually happened, what the legal effect was. Now, for your Honour to derive that, it is not what the parties said they did, it is what they did and the context. We have said there are two options. We firstly in the outline explore the first one, that is, that what the meeting did was adopt as a draft, what they did was put forward a preliminary form of writing subject to revision and copy.
PN10377
And we then say, well, if one looks at the context, the other resolutions, that is a reasonable interpretation of what the meeting intended by the motion. However, perhaps to put the rest of the context in, the outline of submission goes on, your Honour, in paragraph 26, and sets up resolving the filling of positions on a transitional basis, and again that is consistent with the sort of approach set out in Daly's case. At this stage there were two possibilities. The society had some implied rules, or that there were written rules adopted.
PN10378
Now, if the first resolution was correct, if the first interpretation, there is no problem with the society in general meeting resolving to fill transitional positions of president, secretary and treasurer, that is, indeed, consistent with the text. The second is that the constitution had been adopted and then came into operation on the date of filing thereof in the Australian Industrial Relations Commission.
PN10379
Now, there are two possibilities with regard to what this resolution meant. The first possibility with regard to filing is that that meant filing at the date of lodging in accordance with regulation 33. Now, the second option is that this meant filing in accordance with, I think it is section 191, that is, on registration certain documents and so forth are to be filed by the registrar. So there are two interpretations I have filed. The view has been taken - - -
PN10380
THE SENIOR DEPUTY PRESIDENT: Where does the word file appear in section 191? You mean the entry of the particulars?
PN10381
MR PARRY: Yes. The word file, indeed, doesn't appear in either regulation 33 nor, indeed, on my searchings, in division 2 of part 9. Now, if the - - -
PN10382
THE SENIOR DEPUTY PRESIDENT: Yes, I think the Act and the regs generally use the word lodged in relation to everything.
PN10383
MR PARRY: They do. Well, we say in section 191 they talk about entering in a register, which is a different step, and section 63, which deals with the register, I think at section 62 and 63. I think section 191 refers to section 63(1)(a), which refers to keeping a register, and there are certain documents and particulars that have to be kept in relation to that association. So there is a process of entering as well.
PN10384
Now, your Honour here has a resolution which talks of when documents are filed. The meeting - yes. Well, I am not sure this advances it a lot, but file does appear, a little complicated, file does appear in section 170VN, which is about filing an AWA with the employment advocate. Now, I deal with both possibilities here, your Honour. The first is that the filing was the same as lodging, that is - I am sorry, the filing was to take place after lodging, but when the documents were placed with the registry under regulation 33.
PN10385
Now, as your Honour has noted, one does not file a document in the registry, one lodges it. And rule 39 speaks of filing. Now, lodging and filing, in my submission, are different steps. Now, perhaps I deal with this and set out the authorities when I deal with the application for registration, your Honour. If it satisfactory to your Honour I will follow through - - -
PN10386
THE SENIOR DEPUTY PRESIDENT: No. You do it in the manner in which you wish to do it.
PN10387
MR PARRY: Yes. I was following it through the process logically and giving the alternatives at each step, as asserted against us and as we say the legal analysis should be. And I think I was at around paragraph 30, that the interested surgeons had passed other certain resolutions, and at that time thereafter there was another resolution passed that authorised the transitional officers to do all things necessary towards obtaining registration as an organisation of employees.
PN10388
Now, if you assume that the rules had not been filed either by lodging or by any other step at that time, then there were no rules in existence at that time apart from those that the law would imply in an association of this type to enable it to function, and secondly, apart from those rules constituted by the resolutions that had been passed. Now, after the meeting surgeons made application for membership. Again, for the purposes of this application, it doesn't seem a point that goes one way or the other.
[11.00am]
PN10389
The next point is - and I deal with that in paragraphs 36 and 37, about whether people became members or not. Then there is the application for registration. Now, your Honour, that is a document on the Commission file dated 14 August 2001, seeking the registration of the society that was signed by Messrs Brazenor and Taylor. Now, we contend that those transitional officers were acting consistently with motion 6, which authorised them to do everything necessary.
PN10390
Also lodged, as your Honour has noted, was the rules that were before the meeting on 23 June. Now, the two alternatives remain the position. That is, the rules had been passed at the meeting as the rules, or the rules were a draft. Now, to deal with the first of those, we say leaves the association in a position where it does not have rules, it has up to - it does not have rules at the time of making the application for registration in a written form apart from those rules that were constituted by the motions and those that the law would imply to make a society of this type operate.
PN10391
Now, those rules on that argument hadn't been ratified or approved by members, and we would seek, of course, if this matter were to proceed, to demonstrate that there has been a process gone through of ratification, but we are not at that point. Alternatively, the second argument is that the rules had been passed, and that raises the argument of when they came into effect. And, your Honour, in paragraph 44 there is an intermediate step, of course, that is, that you read the resolutions that were passed consistently with the rules when they came into existence in any event.
PN10392
The third proposition is if the Commission were to find the rules were adopted and that when they came into force they overruled the earlier resolutions. Now, it has been put against us in this application that the transitional officers were not authorised to lodge the application in the industrial registry. Now, we say that is incorrect. Regulation 125 deals with how you lodge a document. You lodge a document by leaving it with the registrar. So all the authorised officers had to do was either post it or drop it on the counter. Filing is one step further.
PN10393
And here I have set out a Full Federal Court authority which deals with the concept of filing. Filing occurs when the documents are placed in the records of Courts or registries, and sometimes they merge into one, but the practices described by Walker J in re Daunt - and perhaps I should hand up Purden's case for the assistance of your Honour. Now, this analysis appears on page 515, your Honour, near the bottom of the page, and the citation to re Daunt appears just above it. It was in the context of a debate where the Bankruptcy Act used the word presentation. Now, the quotation appears on the following pages. I don't set it out. But as re Daunt said:
PN10394
Invariable course, and so universally recognised, the presentation of a petition involves and implies a request that it be immediately filed. Filing follows the presentation.
PN10395
In my submission filing follows lodging. Now, that, for the purposes of this argument, is assisted by other places in the Act where the word filing occurs, and your Honour, I refer to the word filing when it appears in respect of AWAs, and it was section 170VA, is consistent with this two step process - VN, I am sorry, your Honour - where it speaks of filing a document and the employment advocate being satisfied the filing requirements have been met and - well, perhaps, your Honour, the trouble with this is that there is a definition of file in section 170VA.
PN10396
So whilst we say it assists us in demonstrating a two step process, it doesn't really - it takes you to the definition of 170VA. So our position is - - -
PN10397
THE SENIOR DEPUTY PRESIDENT: But how does that definition carry it any further? File means file.
PN10398
MR PARRY: Yes, it doesn't carry it any further really. But our position is this. Lodging of an application is one step, the next step is the filing, we say consistent with the authority that one can be authorised to lodge, but if once the rules came into existence when filed. So we say that Mr Brazenor and Mr Arnot were clearly authorised to lodge, and they did that, they complied with the regulation 33.
PN10399
Now, that raises the next argument, what does filed mean? Now, on one view filed might mean that that occurs when the rules are lodged with the application. An alternative view is that the rules became operative on registration. Now, that is not a view dragged out of mid air, rather, it is a view that was expressed by Mr Brazenor under cross-examination when he was asked at 718:
PN10400
Did those rules that were adopted on that date say they were not to operate until the organisation was registered?
PN10401
He said no, which was correct. He said:
PN10402
But it was assumed from all who were at the meeting.
PN10403
So it was assumed by those at the meeting that the rules were not to operate until the organisation was registered. And in my submission that is consistent with the construction that filed meant filing being the steps that were to take place in the event of registration. And Mr Arnot also expressed a similar view at paragraph number 6100, where he said - he was being asked:
PN10404
Why haven't you faced an election from the membership?
PN10405
This starts at paragraph number 6098:
PN10406
You haven't faced an election from the membership?---No. It is purely an acting role. We took the attitude -
PN10407
at paragraph number 6099:
PN10408
that we were all in an acting capacity, we were not elected as such.
PN10409
Paragraph number 6100:
PN10410
All right. And the idea being that -
PN10411
this is Mr Arnot:
PN10412
once we have achieved registration we can then become - we can then comply with the regulations in a formal election of office holders.
PN10413
So the view of the office holders and apparently the meeting was that the rules were to become operative on registration. In my submission that is as consistent with the use of the word filed, as any other interpretation. We say at this stage that there is a valid application before the Commission. The application is not a fiction, it was authorised, there was a society in existence. Now, your Honour has certain powers that you have identified in respect of the application in any event, which we have made reference to in paragraph 49.
PN10414
Now, following the application there were objections, submissions were made, extensive evidence took place, technical issues were raised with regard to the rules and members, there was extensive cross-examination of Mr Arnot and Mr Brazenor about the effects of what they had done. Now, clearly via what the Commission was told in November, the association has a concern about this, it wants to ensure that it complies with the requirements of the Act.
PN10415
And correspondence was forwarded and there were submissions made on 21 November. Now, on Monday the issue was raised, and it appears to be the main issue, is that the section 190 application can't or shouldn't be made because it is pointless, and it is pointless because the association is in a straitjacket or moribund and cannot alter its rules or, indeed, do anything.
PN10416
Now, that argument means that no matter what the association and its members do, the association cannot change anything. They say this because meetings can't be called, there can't be a committee of management, there is no elections. Now, of course, that argument ends depends totally on the finding that there was a binding set of rules adopted, and that those rules came into operation when the rules were lodged in the Commission. Now, I have advanced the arguments already by, we say, neither of those follow.
PN10417
However, let us deal with the third alternative, that that as an alternative. Now, that, we submit, we start in paragraph 65, that it is wrong and not consistent with authority to say that members cannot alter rules if there is no power for them to do so. Now, in this case the objectors delight, revel in saying that the surgeons can't change anything, they have no power to do anything. It is said by the objectors, and we say incorrectly, that it is simply impossible for the members to alter their rules to make the organisation operate and allow it to continue with its application for registration. We say that is wrong. We say it is clearly wrong.
PN10418
In our submission it is a well established proposition of law, the Commission is bound in a matter intra vires by the unanimous agreement of its members. Intra vires means within the objects and within the scope of the powers of the organisation. And the first authority for that is re Express Engineering Works Limited. I hand a copy of that to your Honour.
PN10419
Your Honour, in that case, dealing as it did with a private company, meetings were called not in compliance with the rules, and resolutions were made which were outside the scope of the rules, and people were chasing the company, and there was some criticism of the contracts that were entered into and ratified, and it was held by the Court of Appeal. And I have set out the quotations in the body of the submission, your Honour, and, firstly, it is a fairly short judgment.
PN10420
There is Lord Sterndale, and his comments appear on page 470, Lord Warrington, and also Younger LJ, and the common thread is that if all the shareholders get together they can waive formalities and pass, make such decisions without the necessity for further formalities. Now, that proposition is consistent with what is said by the House of Lords in Salomon v Salomon, and we say that the proposition is neither surprising nor unfair, it is a logical proposition.
PN10421
Now, there are variations within this. It is probably the position that the majority of members present at a general meeting can't pass resolutions changing the rules. The position is clear that all inaugural members are present, and there is a debate about whether the majority of all members can alter rules when there is no power to do so. The decision in Express Engineering is followed by Astbury J in Parker and Cooper v Reading (1926) 1 Chancellery Division at 975. If I could hand up this copy to your Honour.
PN10422
Now, I can assure your Honour that it gets better. The first page is not good, and I haven't been back to the Supreme Court library to update this, your Honour. If it is required, that can be done, but the short facts, I think, are that a whole lot - the shareholders or the corporators had a talk before the meeting and all agreed on a course of action, and there wasn't a complete meeting as required by the corporate rules.
PN10423
And his Honour, Astbury J, took the view, and it is set out on page - after dealing with the re Express Engineering Works, he sets out those views on page 984, and his views are set out in the third major paragraph down. And he was of the view it didn't matter whether assent was given at different times or simultaneously, provided all the corporators assented. And a further case of this proposition, and another variation on the theme, it is a decision of Brightman J in re Bailey, Hay and Co Limited, (1971) 1 Weekly Law Reports at 1357. If I could hand a copy of that to your Honour.
PN10424
Now, this is another variation on the theme. That is, there was all the corporators were on notice of a resolution, and the notices were defective, not in accordance with the corporate rules, and issue was taken that what was done was invalid, as appears to be common in these sort of matters, and it was held there, as is set out in the headnote:
PN10425
The resolution being intra vires, the company must be deemed to have been passed with the unanimous agreement of all the company's corporators, and those who abstained from voting must be treated as having acquiesced by their conduct both at the meeting and subsequently.
PN10426
So this was a meeting where people knew what was going to happen, some of them didn't vote. Now, these authorities with regard to corporations are equally applicable to the position of unincorporated associations. Now, your Honour has previously referred in the VPF case to the text of Fletcher, which is an Australian text, on non profit associations. And, your Honour, if I could hand up an extract from that.
PN10427
MR PARRY: Your Honour, the propositions with regard to amendment occur on page 39. As is said there:
PN10428
The absence of an express power of amendment does not mean that a constitution is unalterable. The constitution represents the voluntary agreement of the whole membership. With the unanimous consent of that membership the constitution can be amended.
PN10429
And then there is reference to the Court of Appeal decision in Abbatt v Treasury Solicitor, where this proposition about a simple majority followed by acquiescence was sufficient, and the text writer doubts that, running counter to the idea of creating a consensual relationship. Now, this proposition is also referred to in one of those cases, being a decision of Brooking J of the Victorian Supreme Court, in Master Grocers Association v Northern District Grocers Cooperative, referred to in (1983) VR at 195. I hand a copy of that to your Honour.
PN10430
And the cases which deal with this proposition are set out on page 204 - I am sorry, not 204, 203, where there is propositions raised about winding up an association at point 10, and there is - no, I am sorry, I have misled your Honour inadvertently. It is page 202, where there is reference about point 4 on the page to the contract theory. Well, it starts off with a proposition about unanimous agreement to dissolve a society. There is then reference to contract theory, leading Jessalem, a master of the roles, to deny the existence of an inherent power in a club to alter its rules by a majority decision so as to provide for expulsion, and led Wells J to conclude that rules of a friendly society which contain no provision for alteration could not be altered without the consent of all members.
PN10431
There is then a reference to a Canadian authority about the consent of all members, and a New Zealand decision about the rules therein. And finally on this point, your Honour, there is the decision I referred to of Abbatt v Treasury Solicitor, reported in (1969) 1 Weekly Law Reports at 1575 - I am sorry, that is incorrect in the submission, it is 1175. If I could hand up a copy of that, a photocopy with a copy of a finger which is not mine.
PN10432
THE SENIOR DEPUTY PRESIDENT: The page reference then contained in the submission?
PN10433
MR PARRY: Is incorrect. It should be 1175.
PN10434
THE SENIOR DEPUTY PRESIDENT: The next page reference though, should that be - - -
PN10435
MR PARRY: That is incorrect.
PN10436
THE SENIOR DEPUTY PRESIDENT: It should be 1183?
PN10437
MR PARRY: Yes, your Honour. I am sorry, no, it is not 1183 either. If your Honour goes to - well, your Honour, it probably is correct.
PN10438
THE SENIOR DEPUTY PRESIDENT: Is there any reason why I have been handed up three copies?
PN10439
MR PARRY: No, your Honour.
PN10440
THE SENIOR DEPUTY PRESIDENT: Well, I will return two.
PN10441
MR PARRY: I think what has happened, your Honour, is that the copy you have is an All England report.
PN10442
THE SENIOR DEPUTY PRESIDENT: Yes.
PN10443
MR PARRY: And the citation is to a weekly law report.
PN10444
THE SENIOR DEPUTY PRESIDENT: Of course.
PN10445
MR PARRY: I think that explains it. Now, there was an issue there about a club and about how it could change its affairs significantly. Its rules had no power to amend or change rules, and the argument was similarly put there, well, they can't do anything, they are stuck. Now, Lord Denning dealt with this at page 1177, and he had the view that the members, about point F:
PN10446
It is true that the old rules contain no express power to amend or alter them, but I should have thought it was implied that the members could on notice, by a simple majority in general meeting, amend or alter the rules. In any event, however, if at such a meeting a majority purport to amend or alter the rules, and others take no objection to it, but instead by their conduct acquiesce in the change, then those rules become binding on all parties who acquiesce.
[11.30am]
PN10447
Now, your Honour, Cross LJ, whose judgment appears thereover, didn't go that far. He was of the view that there had to be a majority - I am sorry, it had to be unanimous, and that appears over the page.
PN10448
THE SENIOR DEPUTY PRESIDENT: But Wynn LJ chose some refreshing honesty.
PN10449
MR PARRY: Yes. He doesn't really choose between the two, your Honour.
PN10450
THE SENIOR DEPUTY PRESIDENT: Well, he says he is not confident to make any worthwhile contribution.
PN10451
MR HERBERT: He must have been nearing retirement.
PN10452
THE SENIOR DEPUTY PRESIDENT: That is an unusual comment to be made from the Bench, perhaps not about the Bench.
PN10453
MR HERBERT: It is regularly made at the bar table.
PN10454
MR PARRY: Well, for the sake of the argument today, it is said against us that no rule change can occur. Now, whether we take the judgment of Denning LJ, or whether we take Cross LJ, or whether we go back to the Engineering case, our position is that a rule change can occur. It can occur either on two possible bases. It can occur by general, on one argument, by a meeting of members in general meeting in majority, or it can occur by a unanimous vote of all members in general meeting.
PN10455
Now, whichever has occurred is not before the Commission at present. We are here confronting an argument that the association is in a straitjacket, and the members having voted at the inaugural meeting have put themselves in a position where they have created a society which is unchangeable, which the rules cannot change, which they can do nothing with, and we say that that is not the law. We say steps can be taken and, indeed, we would want to at the appropriate time put material before the Commission to show that these matters have occurred.
PN10456
Now, to return to the written submissions, there was events that took place in February 2003, which aren't before the Commission. There is an application that we have filed under section 190. It is said against us that it is pointless dealing with that because the body can't alter its rules. Well, we have said the body can alter its rules, and therefore there is some point in giving consideration to our application under section 190.
PN10457
And I have set out some authorities there of Deputy President Moore giving a wide discretion, and so forth. And we would be saying that at the appropriate time we be given that leave. Now, that is the primary argument advanced against us, that we can't change our rules, we are in a straitjacket, we have submitted that there is a way we can, and there are a couple of ways we can, and in that event we submit that the primary ground for the strikeout application, as I describe it, should not be upheld. Now, there are other matters - - -
PN10458
THE SENIOR DEPUTY PRESIDENT: Before you move on to the other matters can I just try and clarify this, so that I actually understand what you are saying. As I apprehend it, you say as of the application being lodged there were rules in existence, they were either the draft rules or, if there were no rules adopted in that sense, they were implied, there were implied rules. Is that right?
PN10459
MR PARRY: Plus the motions.
PN10460
THE SENIOR DEPUTY PRESIDENT: Yes.
PN10461
MR PARRY: Yes.
PN10462
THE SENIOR DEPUTY PRESIDENT: And so if the rules of the applicant association were the rules as filed or, sorry, as lodged with the application, then notwithstanding a provision in those rules as to the manner in which they are to be altered, the members, by agreement, could alter the rules.
PN10463
MR PARRY: Yes.
PN10464
THE SENIOR DEPUTY PRESIDENT: If the document that was lodged with the application does not constitute the rules of the association, then the implied rules could likewise be amended or altered by agreement of the members.
PN10465
MR PARRY: That is so.
PN10466
THE SENIOR DEPUTY PRESIDENT: Is that the way you are putting it?
PN10467
MR PARRY: Yes.
PN10468
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
PN10469
MR PARRY: I think in that interchange there was the other slight alternative about the word file, but assuming that your Honour has read that in there somewhere.
PN10470
THE SENIOR DEPUTY PRESIDENT: Well, if filed meant lodged, then what I said before applies. If filed meant upon registration, or the other end of it, then the rules of the association - sorry, would I have to conclude that the rules of the association were the implied rules, because the others hadn't come into operation?
PN10471
MR PARRY: That is so, that is right. So obviously this leaves aside the events of February 2000.
PN10472
THE SENIOR DEPUTY PRESIDENT: Yes, I appreciate that. And insofar as regulation 33 is concerned, which requires an application to be lodged, or when the application is to be lodged - sorry, the application to be lodged in the registry together with certain things, including the rules, insofar as what was done in the sense that a document headed constitution was lodged, if that were not the rules, then you say I have got power to waive the requirement or amend, at least amend the application to the extent that that may have been incorrect, and correct it?
PN10473
MR PARRY: That is so.
PN10474
THE SENIOR DEPUTY PRESIDENT: Yes.
PN10475
MR PARRY: Now, there is a debate about the eligibility rule of the organisation, and whether there are people that can be covered by it which go beyond section 188(1)(b). I make submissions about that in 86, 87, 88 and 89.
PN10476
THE SENIOR DEPUTY PRESIDENT: Just before you go further with that. If as at the time the application is lodged and the hearings take place, the rules of the association consist of some implied rules, where does the Commission find what the eligibility of the association is, eligibility for membership of the association is? And how do objectors then conduct their cases?
PN10477
MR PARRY: Well, we say that the objectors have conducted their case in this matter on the basis of the eligibility rule that was set out in the draft rules, we would say by the conduct of the meeting containing, as it did, surgeons seeking to join the union, that if there was to be implied an eligibility rule, it would be consistent with that. I mean, no doubt the organisation, the society made the assumption when filing that the rules, that it was complying with regulation 33 by filing the rules.
PN10478
That might be the case. Your Honour might find that that was the case, that it did file the rules. Alternatively, your Honour might find it did not, if the case has been conducted on the basis that those rules were the relevant ones.
PN10479
THE SENIOR DEPUTY PRESIDENT: Are you saying that those are the rules that are implied as between the members?
PN10480
MR PARRY: All the rules, no, I don't go that far.
PN10481
THE SENIOR DEPUTY PRESIDENT: Well, how far do you go? You see, you have made - as I apprehend it, you make a distinction between the set of rules as lodged, and what would be the implied rules if the set of rules were not the rules of the association.
PN10482
MR PARRY: The set of rules - sorry. If your Honour were to form the view that the rules had been adopted, then those are the rules. If your Honour forms the view that they weren't adopted, there would be a set of - there would be the motions that were in place and there would be whatever would be implied for an association of surgeons conducting itself with the aim of obtaining registration. Now, I don't contend that they would go to the extent of the filed rules.
PN10483
Now, your Honour, there was an issue raised about unfairness to objectors. I have dealt with that in the written submissions. And can we submit in that respect that these proceedings have been conducted on the basis that those rules and the eligibility rule in particular was the relevant one. We submit that if there needs to be further evidence called, it can be done. We don't really comprehend what further evidence would be necessary, and that certainly hasn't been articulated. Your Honour, the other arguments are dealt with in writing in regard to the rules and so forth.
PN10484
THE SENIOR DEPUTY PRESIDENT: Do you say that the implied rules consisting of the motions and some other things possibly would indicate that what this association was seeking to do was to be an association of employees and seek registration as an organisation of employees, and, indeed, it specifies that is the registration it seeks in one of the resolutions?
PN10485
MR PARRY: Yes.
PN10486
THE SENIOR DEPUTY PRESIDENT: Does the evidence establish that the persons who carried that resolution are employees, are all employees?
PN10487
MR PARRY: No.
PN10488
THE SENIOR DEPUTY PRESIDENT: Because as I apprehend it they were all members of the association, and that is what is being said, that they are the interested surgeons who met, formed the body, by implication became the members.
PN10489
MR PARRY: Yes.
PN10490
THE SENIOR DEPUTY PRESIDENT: Does the evidence establish that they are employees, all of them? It may not be relevant to your argument, but I am just asking the question.
PN10491
MR PARRY: I don't think it does, I don't think the evidence goes to that extent.
PN10492
THE SENIOR DEPUTY PRESIDENT: Does it establish that some of them were not or are not, were not employees?
PN10493
MR PARRY: Some of them were surgeons that were not VMOs, they were not working in public hospitals. Some of them would have voted.
PN10494
THE SENIOR DEPUTY PRESIDENT: But who may well have provided services by way of independent contract to private hospitals and public hospitals.
PN10495
MR PARRY: Yes, and public hospitals, that is right.
PN10496
THE SENIOR DEPUTY PRESIDENT: Yes.
PN10497
MR PARRY: Well, your Honour, we say it is not relevant for our argument. Your Honour, there are the options, the two options in respect of the interpretation of that resolution. We don't press either one in a way. It is a complicated circumstance. Either it is a draft resolution. In that event we say we can address it by passing appropriate resolutions. Alternative to those rules are the rules, and your Honour so finds, as has been contended by the objectors, we say we have the right of the unanimous vote of members to alter those rules.
PN10498
So we say all roads lead to a position where we can address the issues raised in this application, and then it will be a matter for your Honour to decide that next step. But this application seeks to prevent us even making that application to your Honour.
PN10499
THE SENIOR DEPUTY PRESIDENT: What you say to be the power of the members to alter rules in a situation where there are rules in existence which provide for a procedure, you say flows from the decisions related to corporations and, indeed, I think some of the decisions you have referred to may have been associations unincorporated.
PN10500
MR PARRY: Yes.
PN10501
THE SENIOR DEPUTY PRESIDENT: Is there a distinction to be made between what might apply to registered organisations under this Act, and unincorporated associations which are applying for registration? In other words, are you aware of any cases where the situation involved a registered organisation, where it has been said that notwithstanding what is in the rules, if all the members agree, the rules can be changed, or where it has been said the rules must be followed. In other words, I am trying to see if you are aware of any case where there is a distinction between associations and organisations in this respect?
PN10502
MR PARRY: No, I am not, your Honour.
PN10503
THE SENIOR DEPUTY PRESIDENT: I haven't looked at that myself, but I was just wondering whether you were aware.
PN10504
MR PARRY: The only - there is a couple of references to New Zealand and Canadian union cases, but they are always a bit different.
PN10505
THE SENIOR DEPUTY PRESIDENT: I have certainly got a recollection of cases, and I am not sure whether it is an accurate recollection, where the Court has said that the rule altering procedure must be followed, but whether they were in a particular context and there were other cases that said, well, all the members, which is generally in the case of a registered organisation impossible to achieve, one imagines, but if all the members were to agree, then it doesn't matter what the rule altering procedure says. But if you are not aware of any cases, then that is all right, Mr Parry, I can follow that up myself.
PN10506
MR PARRY: I am not. And that proposition is here in response to the argument put to us that we are incapable of changing our rules.
PN10507
THE SENIOR DEPUTY PRESIDENT: Well, what you put to me, it seems that corporations can, on the basis of what you are putting to me, corporations can do it, associations can do it, I was just wondering if registered organisations were of some different character.
PN10508
MR PARRY: I do not know of any cases with regard to that, your Honour. If your Honour pleases, those are our submissions.
PN10509
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Parry. Mr Herbert?
PN10510
MR HERBERT: Your Honour, could we just have a few moments to - I haven't even finished reading the documents with the things my friend has glossed over.
PN10511
THE SENIOR DEPUTY PRESIDENT: Yes, I appreciate that. How much time would you need?
PN10512
MR HERBERT: For my part I would only need about 20 minutes.
PN10513
THE SENIOR DEPUTY PRESIDENT: 20 minutes to read the document, or 20 - - -
PN10514
MR HERBERT: To read the document and to be prepared to respond.
PN10515
THE SENIOR DEPUTY PRESIDENT: Yes. Well, would that give Mr Bromberg and Mr Warren sufficient time?
PN10516
MR HERBERT: I think I will be about 20 minutes in submissions after that, I think.
PN10517
THE SENIOR DEPUTY PRESIDENT: I was thinking of Mr Herbert's time he needs to absorb the document and time he needs to address me, which would be 40 minutes. By that time I think we would probably have reached the luncheon adjournment in any event. So I think we will adjourn till 12.15, then we will hear from Mr Herbert. We will see where Mr Bromberg and Mr Warren are.
SHORT ADJOURNMENT [11.54am]
RESUMED [12.19am]
PN10518
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Herbert?
PN10519
MR HERBERT: Your Honour, the submissions that have been made make it plain beyond argument, in my submission, that the 111(1)(g) application must be upheld. The fundamental argument in relation to the matter upon which I addressed your Honour on Monday, is that there are, I think it is put that there are three propositions that may have emerged, or three possible legal scenarios that may have emerged from the actions of the applicant, and that is, firstly, that there was the rules, or what were said to be the rules, were not formally ratified or adopted by the meeting and are not binding. And I am reading from paragraph 60 of my friend's submissions.
PN10520
In that event the rules of the association were as constituted by the resolutions passed on 23 June 2001, and as would be implied by laws of contract between the inaugural members until February 2003.
PN10521
THE SENIOR DEPUTY PRESIDENT: What paragraph?
PN10522
MR HERBERT: Paragraph 60.
PN10523
THE SENIOR DEPUTY PRESIDENT: 60. Sorry, I thought you said 16. Go ahead.
PN10524
MR HERBERT: The second alternative which is put, is that the rules did come into existence, and they operate in conjunction with the resolutions passed at the meeting of 23 June 2001. And in that case it is said the transitional officers remain in power to finalise the set of rules for ratification by the members. The third alternative is the one which I contended on Monday, and that is the rule that came into effect when filed, and that that point in paragraph 62, my friend seems to be accepting for the purpose of the argument that lodgment with the Commission on the application amounts to filing.
PN10525
However, putting that to one side, it may be noted that those rules make provision for elections by dates in 2001 which were not complied with. At that time the application was progressing before the Commission. Those rules make provision for certain office holders in the holding of elections, and there are no transitional provisions. And I think it is accepted, and it has certainly not been contended otherwise, that there is no provision anywhere for any of the transitional, so called transitional officers to hold office in the union, to be officers in the union or to have any powers.
PN10526
If I can deal with the second alternative, which seems to suggest that those persons maintained powers. What that means is that the rules that came into existence in August of 2001 weren't, in fact, the rules. The real rules were the rules plus another set of motions and resolutions that sat alongside the rules, and not only supplemented and augmented those rules, but in very material ways contradicted them and cancelled them out.
PN10527
So that the totality of the rules of the organisation in dealing with the second alternative articulated in paragraph 61, the totality of the rules were not the rules contained in annexure A, were not the rules filed or lodged in the Commission, but rather were the rules lodged in the Commission as modified by or as supplemented or augmented by resolutions.
PN10528
And the resolutions, of course, were not lodged as being part of the rules, were not said by anybody - and I took you to the references on Monday as to what the applicant said its rules were, and what Mr Brazenor and others said the relevant rules were to which the Commission and the objectors should have regard, and the rules that were gazetted when this matter was - the proposed rules that were advertised in the gazette when this matter was first filed or lodged, nowhere in any of that paperwork was the fact was it ever suggested that the rules published and pointed to and filed and lodged and identified by all the witnesses were not, in fact, the rules, that there was another set of rules somewhere that qualified those rules.
PN10529
So that in relation to the second alternative in paragraph 61, it seems that nobody suggested or thought or even contemplated that as being a likely possibility, and, in fact, that wasn't what was done at all. The first option then, if I can return to that, the rules were not formally ratified or adopted by the meeting, and are not binding. That would mean that from 23 June 2001 until some purported activity in February 2003, if that activity has resulted in a different situation occurring, then throughout the entire period of the conduct of this case effectively there have been no binding rules, despite multiple assertions to that effect by the applicant and everybody connected with the applicant, despite the application saying that the annexure to the application headed constitution was, in fact, the rules, and despite all of the gazettal of that document as being the rules, and despite all objections being called for on the basis that they were the rules and the eligibility rule, and despite the whole of these proceedings being conducted on the footing that that was the rules that were to be relied upon.
PN10530
It is now submitted seriously in the submissions today that none of that was true, that, in fact, the rules were the resolutions and some other unwritten implied material which has never been asserted by anybody as being the rules, and any of the written documentation upon which these proceedings must be founded, nowhere in the gazetted material, nowhere in any of the submissions. And I took you to the SAS submissions on Monday. Nowhere was it ever contended anywhere until this stage that those implied rules and the resolutions, in fact, constituted the rules of the organisation.
PN10531
So alternatives one and two entirely contradict everything that has been said to date by the applicant, and the applicant is the one who invoked and provoked this process. Before I come to alternative three can I explain, in my submission, what are now the implications of that, if that be true. If alternative one or two is to be accepted, then regulation 33, there has been wholesale non-compliance with regulation 33. There is, in fact, no valid application before the Commission, because regulation 33 - and I should point out, your Honour - your Honour, can I hand up copies of the Victorian Principals case. We have talked about it, but I don't know that anyone has given you.
PN10532
As your Honour pointed out in that case, there are, at 278 of the report, at line 50, or paragraph 50, I should say, the provisions of sub regs one and two are mandatory:
PN10533
A failure to comply with any of the requirements of those sub regulations would render an application invalid.
PN10534
Your Honour held, over on the next page, your Honour has held on the next couple of pages that it is possible to use the discretion available under regulation 133 to overcome non-compliance, or in the event that non-compliance goes to the heart of the application in section 111, maybe called it A. Can one immediately say that there is no application before you in relation to regulation 133, or invoking the discretion under 133 or 111, and has not been.
PN10535
But the non compliance of regulation 33, if either alternative one or two are to be accepted, is that there is, in that event, a list of - what is required is a list of members of the association. I will come back to this because it is relevant to some of the later submissions, some of the other submissions my friend made. But one has difficulty understanding how and why people were admitted as members of the association.
PN10536
It may be, in accordance with the submission my friend makes in paragraph 37 of his written submissions, that the only persons who have been admitted in accordance with the implied rules and the resolutions are the persons who were present at the initial meeting. He puts a plausible argument to paragraph 37 of the written submissions that no person has been validly admitted as a member after that day. And that may well be right.
PN10537
It is not necessary for you to finally determine that at this stage, but on the basis that it is a submission put by the applicant, you can rely upon it as being a foundation for therefore assuming that if the applicant says that that is the state of their case, then the list of members - and I should refer to paragraph 37, your Honour. I have skated over it.
PN10538
The argument is put, there are reasonable arguments to the effect that these people did not become members of the society, that is, persons in addition to those who attended the inaugural meeting. You will recall the evidence were, there were about 70 persons admitted inaugural meeting, but the list that accompanied the application, a list I think of 163. So there is another 90-odd persons who were purported to have joined the organisation between that day and the application being lodged, but the argument is put in paragraph 37, and it does appear to have some strength about it, that the ongoing effect in the motion 5 which authorised the transitional president and secretary to jointly approve applications for membership until branches were established or the membership resolved otherwise.
PN10539
From the evidence of Mr Brazenor and Mr Arnot it would appear there was no such joint approval. Accordingly the extra persons did not become members. Now, if that is right, and again that is a submission we assume is seriously put, then the document which accompanied this application, being the list of members, contains 163 names. Without going through and working out who is who in the zoo, about 90 of them are not members of the organisation in accordance with the applicant's own submission.
PN10540
The applicant now submits that there has been no compliance with 33(1)(c)(i), because the list that was provided with the application with 160-odd names is not the membership list at all. It is a list that contains both members and persons who have not been admitted as members.
PN10541
THE SENIOR DEPUTY PRESIDENT: Why is that fatal?
PN10542
MR HERBERT: It is not a list of the members of the association.
PN10543
THE SENIOR DEPUTY PRESIDENT: Yes, I appreciate that. But why is it fatal? It was believed to be a list of the members, this could happen with any applicant for registration. You are saying that if it includes one name on it that is not a person who is not a member, the person may not be a member because they don't fall within the eligibility rule, irrespective of what was thought when the person was admitted as a member. And I am not saying this organisation, this association, I am talking generally. It is certainly not uncommon in these sorts of proceedings for the eligibility of persons named on the list to be challenged, and some don't often successfully, and therefore would it be argued that because they weren't entitled to be members, the fact that their names appeared on the list that was filed, then somehow the application was fatal, the application is fatally flawed?
PN10544
MR HERBERT: The application, the document that is lodged does not meet the description of a list of members. In fact, less than half the persons on there, by the applicant's own contention, can be members.
PN10545
THE SENIOR DEPUTY PRESIDENT: So unless, you are saying, unless the list specified in regulation 33(1)(c)(i) is exact and accurate, then the application is fatally flawed?
PN10546
MR HERBERT: No. There is non compliance with the regulation. Now, if it was the scenario that your Honour mentions, that there was the odd person here and there who was admitted because of want of eligibility, that would be a matter, one would have thought, that would clearly, if the question was proved and raised, that would clearly lead to perhaps an appropriate exercise of discretion to relieve the applicant of the consequences of having filed the list that wasn't a list of its members.
PN10547
THE SENIOR DEPUTY PRESIDENT: Isn't the purpose of the list to enable conclusions to be drawn as to whether there are the requisite number?
PN10548
MR HERBERT: Well, also requisite eligibility and compliance with rules.
PN10549
THE SENIOR DEPUTY PRESIDENT: Well, that is what I mean, they are actually validly members and there are enough of them to fulfil that requirement.
PN10550
MR HERBERT: But in accordance with the evidence given by the applicant in these proceedings, more than half of the persons on that list have not been validly admitted to the organisation by their own case. Your Honour, that is just the beginning of the non compliance with regulation 33. And this is based on two possibilities that the rules did not come into effect. A list of the officers and the occupants of those officers - I am sorry, if the rule, if the first possibility in paragraph 60 is correct, then the list of the officers and the occupants of those officers is incorrect, because the only persons occupying any office were the transitional officers, and the offices mentioned in the application, nobody validly holds any of those offices.
PN10551
So that paragraph 3 has not been complied with. Paragraph 4, a list of the branches of the association, I don't, again, whether that is or is not complied with may depend upon whether the rules have come into effect or not, because there are no branches other than under the rules. But the fundamental difficulty is that under reg 33(1)(c)(v), the rules of the association are required to be lodged with the registry with the application.
PN10552
Under the option articulated in paragraph 60, then the document that was lodged as being the rules and referred to in the application as being the rules, is not in fact or in law the rules. Now, that is the case in both option one and option two in paragraph 60 and 61 of the written submissions. Now, that has far reaching consequences because it is the rules which are the measure or the benchmark by which this organisation is to be assessed. The first is to whether it is an eligible applicant under 188, and secondly, as to whether it is entitled to succeed under 189.
PN10553
And, in fact, neither of those matters can now be assessed. We are here because the rules that were identified, that were lodged with the application and that were gazetted, and upon which these proceedings have been conducted, are not, on two of the scenarios, the actual rules of the organisation. In one case they are not the rules at all, they bear no resemblance whatsoever to the rules, and on the second case the rules are substantially qualified and overborne by some other resolutions which don't appear in the documents.
PN10554
So that, in fact, the rules, that is, the rules that were actually binding upon the organisation which applied for registration, are not disclosed as such in the application documents. They are, in fact, bound on contentions one and two, on option one and two by another set of rules altogether, and therefore within the meaning of regulation 33(1)(c)(v), the contention is now made by the application that the rules binding on them at the time were not attached to their application.
PN10555
Now, that being so, then those requirements being mandatory, if options one and two are accepted as being possibilities in this matter, then the application is fatally flawed. Your Honour has determined that there remains power under reg 133 to waive compliance, assuming these matters are procedural, as opposed to substantive requirements of an organisation in order to satisfy the Commission at a prima facie level that it is an organisation which is capable of meeting the criteria under 188, allows exemption from procedural requirements, that is, in this case, the filing of rules and other things, in special circumstances under 133(1).
PN10556
Now, there would have to be a special circumstance here other than wholesale non compliance on four or five different levels. I might say it is extraordinary, but it is hardly special. In effect, the contention is now made that the parties and the Commission were, one way or another, misled by what were the actual state of the rules binding on the organisation. All of the parties have spent an exorbitant amount of money pursuing a case based on an assertion which, 18 months later, is said not to be true.
PN10557
Now, there is nothing put by my learned friend which would amount to a special circumstance that would relieve the parties of those consequences, particularly in circumstances where to now be relieved of that requirement would put the parties in a position where we are now going to have to debate about a whole different set of rules, because the rules upon which we were debating it are now, as we see from the 190 application, sought to be changed in a dramatic way, and the parties are entitled and, in fact, the parties are required by the Act to litigate this matter on the basis of the rules as lodged, as filed.
PN10558
The parties are required to make their objections on the basis of those rules, and the parties are not permitted in these proceedings to modify the grounds of their objection after initially having made - the parties are bound to the grounds of objections made at the time, which makes it absolutely critical that the basis upon which the objectors are required to object be accurate at the time at which the application is put forward. That is not to say that subsequently, if difficulties are found with rules and a party has the capacity to change them, that they are not entitled to change, subject to leave being granted by the Commission. But one of the factors to be taken into account is whether a party which has been required to object on a given basis is constrained not to be able to modify their objection as time goes, we would be prejudiced in that part.
PN10559
In these circumstances, in my submission, apart from the very clear arguments that there is nothing in the nature of a special circumstance which would warrant the granting of an indulgence to excuse the applicant of the non compliance under reg 33, in fact, there has been no application under regulation 33, notwithstanding that these matters have been flagged now for a very long time. The arguments I put on Monday, as I indicated, were put within the written submissions that were lodged in relation to the 190 application.
PN10560
These matters were flagged in the evidence, they were obviously adverted to by the applicant as they sought an extensive adjournment to seek to try and remedy the position. All of these matters have been known. The arguments have been put here in relation to option one and two, the necessary consequence of which is that the documents lodged with the application fail to comply with reg 33, and yet no application is now made or has been made or is even foreshadowed to exempt the application from compliance.
PN10561
Now, there has to be an end to this, with respect. The objectors are effectively, by a process of grinding away at this application and the factual matrix on almost every evidentiary session discovering material which demonstrates that the application is fatally flawed in some serious way or another, and it is not a process of the objectors instructing the applicant as to how to run their case. The objectors have turned up these matters in cross-examination of the witnesses.
PN10562
The applicant is seeking to continually move their position, as applicants do in matters of this kind, but there must be a point at which the Commission says enough, particularly in circumstances where a submission is seriously made now that regulation - the consequence of which is that regulation 33 has been failed to be complied with in some very material ways and very substantial ways, and yet the applicant makes no application.
PN10563
If option one or two are accepted, the application is, as you expressed it in the Victorian Principal cases, the application is currently invalid, and it is not in the public interest that we sit around and wait now for the applicant to make yet another application to be excused from non compliance. To a certain extent, however, much of that may be academic, because the true position would appear. I mean, if that is right, that it is fatal, then it is fatal by the applicant's own hand. But the true position may well be that the third alternative which was contended by me on Monday is, in fact, the correct one, that is, that the rules came into effect when filed.
PN10564
My learned friend made, with respect to him, a valiant attempt to seek to distinguish this whole question of lodgment and filing, and suggested there was something different. The cases to which my friend went, particularly Purden v Registrar in Bankruptcy, that case deals with a statute which has two different terms within it, one being presentation and one being filed, and seeks to explain the difference between presentation and filing in the context of a particular statute.
PN10565
Of course, that is not the case here. The word filing appears in the resolution of members, and not in the statute, not in the Act, not in the rules or the regulations, it is in the resolution of the members, and one would have to say that every lawyer in this room would understand that the concept of filing is as was explained in Purden's case at page 515. Filing is the word traditionally used to describe the act or process of placing documents in the records of Courts or registries.
PN10566
Well, lodging an application with a document appended to it, referred to in the application by name, with a view to that document disappearing into the records of the Court or the registry, and being processed accordingly, is by any measure of means filing a resolution, which no doubt at some point had a lawyer's hand on it, which uses the word filing in the AIRC. There is only way to get a document into the AIRC other than tendering it in Court proceedings, and that is to push it over the counter of the Registry, which is generally with a view to going into the records, not going into the bin, which is usually a concept known as filing, and that is the word that is used in the resolution.
PN10567
In fact, as we know, that document was filed, that is, it was attached to an application which was itself with the attachment lodged in the Registry with intent that it go in and be processed as if it were part of an application. That is the thing or the activity which was described by the applicant, by the persons who made the relevant resolutions on 21 June. The latest rule, change of the rules of the Commission, deals with filing and lodging electronically of applications for certifications of agreement, it uses the heading filing and lodging, and says:
PN10568
A document that is required or permitted to be filed by these rules may be lodged electronically.
PN10569
MR HERBERT: There you are. I rest my case.
PN10570
THE SENIOR DEPUTY PRESIDENT: But that, of course, doesn't apply to the regulations necessarily, but that is a form of drafting that the Commission itself has adopted.
PN10571
MR HERBERT: But, again, I take comfort from the words which are used in the Purden decision, that filing is the word traditionally used to describe the act or process of placing documents in the records of Courts or registries. If you went and placed it on the counter with a view to asking that it be photocopied and given back, that would not be filing. You might lodge it with a view to having it copied, but you are not filing it. Filing means you want it placed on the file. And your Honour has many files, and the constitution is on one of them as an annexure to the application, which is the document, which, as I understand it, generates the file in these proceedings.
PN10572
But as I have submitted, every lawyer in this room would understand that that is the concept known as filing, and that that is what these lay persons, lay in the legal sense, persons, would be taken to have expressed in a resolution which says when the constitution is filed. And, of course, it is incomprehensible that anything else could have been meant because of the requirements of regulation 33, for a start, because regulation 33 requires that you lodge with the application a copy of the rules.
PN10573
And Mr Brazenor and Mr Arnot, I think, or Mr Taylor, I am sorry, the thing they did in order to comply with regulation 33, was to lodge/file the written constitution. When regulation 33 said you have to lodge a copy of your rules, that is what they lodged, purporting to be the copy of their rules. And for them to be the copy of their rules, they have to be in force and effect. Because regulation 33 doesn't say a copy of the document which may well become your rules at some time in the far distant future if you feel like it, or if you had resolved to that effect, the copy of the rules.
PN10574
Well, the one thing about rules is they have to be binding. If they are not binding they are not rules. So it appears that the intent was plain that the rules - and, again, one assumes a lawyer would pass their eyes over some of this at some stage, but there is no evidence of that - that the resolution which says - I am sorry, the rule 39 of the constitution which says that these rules come into effect upon being filed in the Commission, the evidence is that that body of rules, that document was filed in the Commission in every sense of the word, and that accordingly, in accordance with the resolution of the parties adopting that set of rules, the consequence of the resolution of the parties is that those rules came into full force and effect.
PN10575
So that option number three, alternative number three put by my learned friend is, in fact, the correct one. They came into effect when filed, which was on 14 August. The fundamental position then taken by my learned friend is that it is wrong and not consistent with authority to say that members cannot alter rules if there is no power for them to do so. The cases to which - - -
PN10576
THE SENIOR DEPUTY PRESIDENT: Can I interrupt you there. Is this an appropriate time to adjourn?
PN10577
MR HERBERT: Yes, your Honour.
PN10578
THE SENIOR DEPUTY PRESIDENT: We will adjourn until 2.15.
PN10579
MR BROMBERG: Your Honour, can I mention something that might well have been more appropriate to mention before my learned friend started? I don't know how long my learned friend is going to be, but my own view is that I would prefer to put submissions to your Honour tomorrow morning. I can put submissions to your Honour this afternoon if tomorrow morning is not convenient, but my own preference is that your Honour will be assisted by a submission which can be put by reference to some cases, if there are cases, that ought to be drawn to your attention. I have in mind some that may be of relevance. I don't think I will be able to get them.
PN10580
THE SENIOR DEPUTY PRESIDENT: How much time do you think you will need tomorrow morning?
PN10581
MR BROMBERG: Half an hour to an hour.
PN10582
THE SENIOR DEPUTY PRESIDENT: What is your position on that, Mr Parry?
PN10583
MR PARRY: Well, I oppose that. We could have done all this on Monday if we had have got notice of it. The objectors turn up on Monday and make an application without any notice to us. We have had a couple of days and we have dealt with it in a bit of detail, and Mr Herbert is quite rightly responding to that now. Mr Bromberg should go ahead and respond to it this afternoon. This is a matter that should be dealt with in a day. It doesn't need us all coming back with the consequent cost and time and effort tomorrow. So I strongly oppose that.
PN10584
THE SENIOR DEPUTY PRESIDENT: Mr Parry, what if I required Mr Bromberg to put his submissions this afternoon, and any cases that he might want to refer the Commission to, he could do so in writing within 24 or 48 hours, and if you wish to comment on them you could do so as well.
PN10585
MR PARRY: Such a direction is a matter for your Honour.
PN10586
THE SENIOR DEPUTY PRESIDENT: Yes. Mr Bromberg, I would much prefer to deal with the matter today. I have operated on the basis that we would finish hearing today.
PN10587
MR BROMBERG: I am content with that, your Honour.
PN10588
THE SENIOR DEPUTY PRESIDENT: And if there are some cases you wish to refer me to, then you can advise me of those within 24 hours, and the parties within 24 hours, or by Thursday night, I think is what I mean.
PN10589
MR BROMBERG: If your Honour pleases.
PN10590
THE SENIOR DEPUTY PRESIDENT: Yes. We will adjourn until 2.15.
LUNCHEON ADJOURNMENT [12.55pm]
RESUMED [2.17pm]
PN10591
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Herbert?
PN10592
MR HERBERT: Yes, your Honour. Your Honour, I was just about to deal with the third alternative that is postulated in the submissions, which is the alternative which, in my submission, is the most likely. I would have to say, in the overall context of the application that has been brought, the mere fact that three options of this kind exist and are seriously contended for by the applicant is of itself evidence that the application is in staggering state of disarray.
PN10593
But in relation to the third alternative, the fundamental proposition that is put by the applicants is that it is theoretically possible for a 100 per cent resolution in favour of a particular proposition to sweep away the effect of the rules, and that is that the unanimous resolution of the whole of the membership in an unincorporated association is capable of passing a resolution which is inconsistent with a rule earlier made by the membership.
PN10594
As a bare legal proposition, your Honour, that appears that that may be correct on the authorities. The difficulty here in relation to implementing such a course - before I go to that could I say this. The authorities upon which my friend relies deal in almost every respect with situations where an organisation has no rule as to how its rules are to be changed, and the authorities to which he refers deal with circumstances of corporations and unincorporated associations, which make no provision for the thing which is being sought to be done.
PN10595
And an argument is raised as to how one goes about doing it when the rules don't permit it to be done. In some cases it involves an amalgamation, in some cases disillusion, registration is a different kind of body, and things of that kind. In relation to the - and in some cases the changing of rules in circumstances where there is no rule change rule, and the debate is how one does a thing which is not otherwise authorised by the rules, which has a fundamental effect on the organisation.
PN10596
There is an observation in the Master Grocers case which would appear to be consistent with authority, to which my learned friend didn't refer, and that is at page 203 of the - I don't think he referred to it - it is at page 203 of the Master Grocers case. And his Honour had gone through considering a wide range of the cases to which my friend had referred, and then he says in the last paragraph on that page:
PN10597
Whatever be the view taken on the question of whether in the absence of some provision in the rules an unincorporated body can be dissolved by the agreement of something less than the whole body of its members. It is clear that unanimous agreement to dissolve will, whatever the rules may say, always be effective.
PN10598
Now, that deals with the question of disillusion, and it does appear to be an observation that notwithstanding the state of the rules, even if that, whatever the rules may say, a unanimous resolution of all of the members could have that effect. Now, your Honour, that is as a bare legal proposition for the time being, can be accepted to apply to a circumstance where there is a rule change rule, but it is unable to be accessed because the relevant bodies necessary in order to access that rule do not exist, as is the case here.
PN10599
It would be necessary in order to repair all of those things for a unanimous resolution of every single member of the relevant body. But the difficulty here, which is not the case in any of the authorities to which my friend has referred, is that the rules that were, on my submission, brought into force and effect on 14 August, governed and controlled the whole nature of the identity of the association and all that it could and should do.
PN10600
And I will make this submission as clearly and succinctly as I can. No part of those rules, that constitution rule, has ever been complied with at any time by any person, on the evidence before you. Those rules were filed and thereafter utterly ignored as if they did not exist. In fact, as late as April 2003, two years after the event almost, the submission is put that those rules, in fact, were never binding, and seriously put, and reasons have been put as to why those rules have never bound.
PN10601
Now, the evidence before you is that the parties - I am sorry, those persons responsible or appointed by the meeting in June 2001, have never attempted to comply or assure or effect or facilitate compliance with those rules, or any of them or any part of them, or to have any regard to them whatsoever. Now, much of this comes out of not only the evidence before you, but the submissions that have been put today. Unlike the cases to which you referred where there were operating or viable or functioning, or existing organisations which otherwise operated in accordance with a set of rules, this organisation has never operated in accordance with its rules, that is the rules binding upon it, and have never endeavoured to do so at any level or at any time.
PN10602
The cases concern themselves with organisations which, whilst they have a functioning existence, and which are by and large operating under and in accordance with a set of rules, and in many cases for 30 or 40 or 100 years, they have struck a particular problem at a particular point of their existence where they lack a certain capacity to do a thing which needs to be done, and the debate in those cases appears to be concerned with, well, there is no rule that empowers them to do this thing.
PN10603
What principles do we adopt? Do we adopt the contract theory or some other principle as to how they can do the thing, but always on the footing that there is an existing viable organisation which is otherwise acting in compliance with its rules, how do we augment this rule, how do we get around this rule, how do we allow it to do some thing in relation to which there is some problem with capacity?
PN10604
Nowhere is there a situation where the organisation which is purporting to do this thing, has never complied with any of the rules, and needs to be able to change the rules with which it has never complied in order that somebody acquires a capacity to comply with those rules. And that goes to the heart of this application, the 111(1)(g) application. This organisation has never existed as such since 14 August 2001, because the rules which govern its every functioning activity have been totally ignored.
PN10605
There hasn't been the faintest or any shadow of an attempt to comply with those rules and thereby acquire to the organisation some of the attributes which it presented to the Commission on 14 August as being the defining attributes of that organisation. So the organisation as depicted in the application has never come into existence. It doesn't exist now and it didn't exist then, because when the rules which define it, control it, govern it and otherwise regulate everything about it, including your ability to join it, your ability to, or your entitlement to be eligible to join, the representation structures, elections, all of those sorts of things which define an organisation capable of being registered under the Act and which control the ability of such an organisation to be registered, and ensure that it is capable of being determined as being a real functioning organisation as opposed to a shell or a sham.
PN10606
None of those things have ever been done, none of those attributes have ever been acquired, and so the organisation as such doesn't, on the submissions we have heard this morning, has never come into existence.
PN10607
THE SENIOR DEPUTY PRESIDENT: You mean it wasn't in existence prior to the application being lodged?
PN10608
MR HERBERT: There was an organisation in existence prior to the application being lodged, and it was an organisation which, as it were, had two stages, if you like, the two stages of its existence with the prospect of a third stage, being registered - existence as a registered organisation. The first stage was the incorporated association regulated only by a set of resolutions, having adopted a set of rules, but at the same time as they adopt the set of rules, saying, we will postpone the coming into effect of those rules to a future date, all of which is, assuming that happened, and for the purpose of this argument we have assumed that to have happened, all of that is regular and sufficient. And unincorporated association is perfectly entitled to do all of those things.
PN10609
That is stage one of its existence. Stage 2 of its existence is when the resolution comes into effect, that the rules adopted, the constitution which it had adopted at an earlier point of time, is to come into force and effect, and that, on our submission, has happened on 14 August. That was stage two of its existence. That required the organisation to adopt a vastly different set of activities and attributes and to go through a lot of processes, and to undertake various restrictions on its own liberty to behave as it liked, because the members had bound together, on the contract theory, had bound together to observe this set of rules. That is, they would hold elections, persons would be appointed, they would observe formalities in relation to admission and other things, and you couldn't be a part of this club unless you complied with these requirements, etcetera.
PN10610
That is a completely different - whilst it is the same association, it is a completely different animal, if you like, in the sense that there is a whole new set of rules of behaviour, conduct, admission, election, accountabilities, finances, branch structures, everything. The third stage would be, upon acquiring registration as an organisation, it would then have another set of obligations imposed, that is, those imposed by the Act on registered organisations, and the accountabilities involved.
PN10611
Once it transformed itself, once it came out of the chrysalis, as it were, from the pre-application moth into the post - the pre-application caterpillar to the post application moth in that situation it was required to behave itself in accordance with the rules it had set for itself, and it didn't. So despite the fact that it was bound by those rules, not one single aspect of those rules has ever been observed, so far as the evidence goes, and therefore it never acquired any of those attributes, and one would have to say, for all relevant purposes, on the submission we put on Monday, it is moribund, it has ceased to exist because it is no longer entitled to conduct itself as an uninhibited, unincorporated association bound only by a couple of resolutions at a casual meeting.
PN10612
It is required to conduct itself in accordance with a set of rules which it has adopted for itself. Because it didn't, it effectively, for all relevant purposes, ceases to be, because the rules that it adopted for itself say that the people who govern this organisation, who make the decisions and who control who joins and who doesn't, etcetera, must be appointed from amongst our membership by a particular process, which process has never been observed, and therefore there are no persons who can appoint or control or do any of those things.
PN10613
So the organisation as such has never ceased to exist in any shape or form, and this is not a case, as I say, as referred to in the authorities, as seeking a further power for a functional organisation. It is seeking, in effect, it being said by the 190 application, for example, it is seeking, in effect, to make the organisation function for the first time in accordance with the rules which it adopted for itself.
PN10614
But to go back and unring the bell, as it were, and pretend that since 19 August 2001 it has functioned in some fashion, well, with respect, it hasn't functioned since August 2001 at all. Because in order to function lawfully in accordance with the rules it must comply with the rules it adopted for itself, and because it hasn't complied with those rules, it has no capacity to function as an organisation. It can't simply putt along and say, we have transitional officers, because it doesn't have transitional officers.
PN10615
The rules it adopted for itself which came into force in August, don't recognise those persons as having any authority whatsoever. Their authority disappeared, such authorities that might have been given by the meeting of 21 June, disappeared on 14 August, supplanted by the structures that exist within the rules for control. How can one have, one asks rhetorically, how can one have transitional officers continuing to run the union when its rules say the union is run by a council elected by a particular methodology?
PN10616
You can't have them both unless there is, as is often the case, and in a way that was in the case of the Victorian Principals situation, there is a transitional rule that says, well, notwithstanding all of these structures, for the time being we will allow these persons to be in charge until that happens. And because this organisation had no transitional rule, because the founding members, inaugural members voted for this new rule to come into effect at a particular point of time by voting for rule 39 on 21 August. Mr Brazenor and Mr Taylor triggered rule 39, and thereby triggered their own demise.
PN10617
And because there is nobody in control of this organisation, there is nobody who has any authority in relation to the organisation, the organisation cannot function. There cannot be a group of like minded surgeons milling around in a room somewhere without any controlling or guiding entities within it. Now, my learned friend wholly failed to deal with that concept in his submissions, as to how it can be that the body continued on. The mere fact - and this appears to be the foundation of his submissions - the mere fact that Mr Brazenor continued on as if he was in control, and Mr Taylor and others continued on as if they did hold office, he says is enough.
PN10618
Well, the members resolved that that wasn't to be the case, with respect. They resolved that a set of rules were to come into force as to who was in control, and that set of rules didn't allow for Mr Brazenor and Mr Taylor to trundle on after the meeting. And if they did, as I submitted earlier, that is basically option two of my friend's submissions, that means that the rules aren't the rules that were lodged, that the rules are the rules cut down by the fact that, in effect, there is a transitional rule in there somewhere that we have never seen that gives undefined powers to undefined people for an undefined period and in undefined circumstances merely by virtue of the fact that Mr Brazenor happened to be holding the reigns as a result of the original meeting.
PN10619
So my learned friend's contention in that sense then falls completely, to suggest that there is some analogy to be drawn between the situation of his client organisation and those referred to in authorities that say that this organisation can get together by unanimous vote and do certain things. That pre-supposes the existence of an organisation which has members and a functioning existence.
PN10620
The fundamental basis why this application was brought now is, and it has been confirmed by everything my learned friend has said, is that this organisation has no functioning existence. And as I say, the clear and single basis upon which that can be adjudged is the fact that the organisation, after it voted to be regulated by a particular set of rules, no person connected with the association has ever complied with one of those rules from that day to this, not one.
PN10621
And one would have to ask, again, rhetorically, how could it be that an organisation could claim a functioning existence as an organisation under the Act, when none of its rules had ever been complied with from its inception, that is, none of its new rules from 14 August had ever been complied with at any level. So the suggestion that this organisation can take advantage of being able to call a meeting of its members and alter its rules, in my submission, in this case must be rejected.
[2.37pm]
PN10622
Even in the event that - and I think the proposition is put, that hypothetically, in accordance with the legal principles which were suggested earlier, the organisation can do this thing, that 111(1)(g) application would prevent them from being able to do so. Well, if one examines the possibility that if - again, hypothetically, your Honour were to reject the application under 111(1)(g), or allow this application to stumble forwards, the first thing that needs to be done, in my submission, is that the rules would need to be altered in a way which the law would appear to provide, that is, a unanimous resolution of the members.
PN10623
Well, there are about three obstacles in the path of that happening. The first one is, we don't know who the members are. This is a chronology of disarray in relation to this application. The first one is, we don't know who the members are. My learned friend, as I pointed out, in paragraph 37 of his submissions, puts up a plausible argument that, in fact, it would appear, the only members are persons whom, it didn't emerge until very late in the evidence, were the only members, and that is the ones that were at the initial meeting.
PN10624
My friend contends in paragraph 37, but he says it is not a matter for even doubt, but there are reasonable arguments to effect that. The applicant cannot tell you now, sitting in this stage of the proceedings, almost two years on, who its members are. It can make contentions as to reasonably plausible possibilities, but can't tell you who they are. Not even subject to questions, fine questions of eligibility or anything else, but their best guess as to who the membership is, is about 40 per cent of the group that were sworn in the original application to be their members, that is, those who were there at the inaugural meeting, and nobody else.
PN10625
In order to get down to that list it must contend and prove that its application is invalid, because the application is not accompanied by the list of members, it is accompanied by a list of persons who are, as I say, more than 50 per cent of the persons on that list are not and cannot be members, apparently to the knowledge of the applicant. So it must prove in order to establish that that's its membership, that its application is invalid in relation to the membership list.
PN10626
Secondly, it will prove, as part of such a contention, that a range of people have been apparently admitted to membership contrary to the rules, whatever the rules are. It must then prove strictly that the group that they get together in the one place at the one time to vote for this unanimous resolution will be 100 per cent of the available membership, and that will require, one would have thought, some detailed and strict evidence about that situation. That in itself is a complicated procedure.
PN10627
That will then require two further steps. The first is an application to this Commission for leave under section 190 to do all of this, secondly, an application under regulation 133 to validate the now admittedly invalid application. Two completely different sets of discretionary determination in favour of the applicant in order just to get themselves to the stage where they can even ask that you look at the merits of the matter, or ask that you look at the further defects of the proceedings.
PN10628
As I say, it is a curious case where they have to invalidate their application by deposing to the fact that their members, or their membership list aren't their members at all in order to get to the position of having a vote to change their rules to the point where they can then apply for a section 190 application to be able to change their rules in order to create a valid set of rules so that the organisation can function. That is where we are at, at the moment in relation to this application.
PN10629
The most extraordinary chain of discretionary considerations need to be brought. The section 190 application has been filed, the regulation 133 application hasn't yet been thought of as far as we know, it has certainly not been mentioned, and yet it is a part of their 190 application proceedings. Further, it appears that the 190 application in that respect is seeking to validate all of these things, that is, to change the rules around because the rules came into effect in August, but have not been complied with in any respect, and now cannot be complied with.
PN10630
It is necessarily implicit in everything that is done there, if not explicit, and it has certainly been part of the submissions made here today for the reasons that I mentioned earlier, that at least three other paragraphs of the regulation 33 have not been complied with, apart from the list of members. There is a list of officers holding office which was lodged with the application, which is false. None of those officers hold those offices because none of them have been elected to any of those offices in accordance with the rules that came into effect on the day of filing. That is paragraph 3.
PN10631
I am sorry, I did say three other paragraphs; there are two other paragraphs, three in total, 1, 3 and 5. The rules of the association and of each of its branches, in paragraph 5, that was lodged are, it appears, on one view of these proceedings, not the rules. Now, that being the position of the applicant, in my submission, they need to make a range of validating applications to restore this matter into a position which will then be markedly different and completely different from the position that was presented upon this application.
PN10632
And finally on this particular topic, if it transpires that the uncertainty expressed by my learned friend in paragraph 37 of his submissions, as to who exactly are the members, if it transpires that they are wrong about that, everything that they do in that regard will be pointless and wasted, because so long as they are one short of unanimous, then the rule changing rule can't be changed, and all of the other rules that require elections to be held at various times can't be changed without regard to the rule changing rule itself, and that will mean that everyone will have wasted their time, and we will all go away.
PN10633
Now, if an applicant at this stage of the proceedings cannot contend with absolute force now and cannot allow your Honour to make a finding with absolute certainty as to who their membership is, and therefore find with absolute precision that the organisation is certainly capable of altering its rules by unanimous resolution of its existing members, then your Honour cannot be satisfied that the organisation is capable of remedying its current multiple deficiencies.
PN10634
Because of the organisation can't tell the Commission who it thinks its members are with absolute precision, and can't support that with good evidence, then your Honour is hardly in a position to find something which they themselves can't prove and can't say with any confidence they have proved. And if you can't find that they are capable of remedying this situation by unanimous resolution, well, then 111(1)(g) considerations are immediately invoked.
PN10635
That is, of course, only if you are against me on the proposition that I put earlier, that the organisation as such is completely moribund, because since August 2001 until the present date it has never purported to function in accordance with its rules, and therefore it is not possible to say that it exists. It would appear only to exist in the minds and the memory, as it were, of a small core of persons who may have been involved in the inaugural meeting, but having been so involved have never attempted to comply at any level with the rules that they set for themselves and the rules that all of the other members set for them.
PN10636
And, your Honour, that leads then to the inescapable conclusion that this application must fail, and to the extent that there remains the bare hypothetical possibility that all of those multiple deficiencies one after the other could be cured by reference to 190 applications, a definite and correct decision being made as to who the membership is so that they can have a ballot of the requisite kind in order to get around their rule change rules, that an organisation can rise like Phoenix from the ashes of what has happened here, and that all of those things can be corrected.
PN10637
Future applications under regulation 133 that have not yet even been foreshadowed, are made and are successful, on the assumption that all of those things are possible, or it would be necessary for your Honour to determine that all of those things remain possible, and that it is fair in the present circumstances that the organisation be allowed to do all of those things, leaving the objectors at the other end of the table watching this rotating feast of amendments, applications to cure invalidities and things of that kind, to go on and on and on, then and only in those circumstances would your Honour determine that the 111(1)(g) application should be dismissed.
PN10638
What has been turned up by this application and submissions that were put today, on Monday and today, is that the entire application is fundamentally flawed because the organisation depicted in the application does not and has not since 14 August existed. To the extent that it exists in the minds of some few who are sponsoring this application, the organisation is not and cannot be determined as being a genuine organisation of the kind referred to under the Act, as it only appears to have any kind of existence at some time in the future if and when registration is granted.
PN10639
As we speak and throughout the whole history of the application it has never existed in any real sense. It has never functioned, it has never purported to represent anybody about anything. It can't function, it could never have functioned since 14 August as any kind of representative body or industrial body, or even as an unincorporated club because of its incapacity to comply with its rules. And the only time that an endeavour was made to do anything about creating some air of reality or substance about its legal existence was after the objectors pointed out the fact that the organisation was frozen and paralysed by reason of a complete failure to comply with its rules.
PN10640
I have already dealt with the question of the fact that there are no representative structures at all in existence in the organisation and, I repeat, never have been. In addition to that it appears that the organisation has been treating a substantial number of persons as members who were never, it is now admitted by the applicants, capable of being members, they were never admitted as members, because the only rules that applied or could have applied at any time were the resolutions giving authority to Mr Brazenor and Mr Arnot to jointly admit members, and in accordance with the submissions made, the evidence - the submissions made by the applicant - the evidence discloses that that never occurred.
PN10641
After 14 August the admission rules of the organisation itself within the constitution have never been complied with either. So now this organisation, it appears, only has as members the remainder of the inaugural members who haven't resigned, and that is 70 minus the resignations, and we don't know how many that is. So we have an organisation that has less than 70 members, has no capacity to admit persons as members as we speak, has no accountable structures or organisations, has no organisational structure, has no elected officials of any description, has no financial existence for those reasons, has no offices, no officers who hold office in the organisation, has never purported to act in any industrial sense or any other sense at all, has no real existence as an industrial organisation, and has never indicated any level in any of its evidence that it has ever attempted to act in any industrial sense or undertake any form of industrial activity at all.
PN10642
And that is not surprising given that it doesn't actually exist as an organisation, I suppose. But for all of those reasons, and can I say that it is not like an ordinary club like the local cricket club or the bowls club that might have fallen into a little bit of decay or disuse because all the members got old and stopped coming to the meetings, this is an organisation that never did exist after 14 August, or ceased to exist effectively by its own hand, and further to that, it took the step of applying for registration as an industrial organisation, in which case it subjected itself to the legislative prohibition that it was prohibited from altering its rules without the leave of this Commission, it subjected itself to the scrutiny of this Act and of this Commission, and the restrictions imposed by the Act in relation to its rules.
PN10643
It also is putting itself up to be adjudicated upon as to whether it is a competent entity to be adjudged as being eligible for registration as an industrial organisation with all that that entails. So it is not just a situation that fell into disuse because nobody cared much any more. One would have thought that this was a point of the history of this organisation when it had to be on its best behaviour and it had to be putting its very best foot forward, and it had to be demonstrating to this Commission its proficiency and its efficiency, and the relevant attributes necessary to qualify to be an industrial organisation.
PN10644
It should have been at its glowing best, and during the whole period it should have been at its glowing best it fell into absolute disarray, disuse, and the rules were utterly ignore, and nobody took any care or any time or put any effort until pointed out by the objectors in the course of these proceedings, to even attempt to create a real and functioning organisation.
PN10645
Now, on that basis, in my submission, that invokes the public interest qualification of 111(1)(g)(iii), as to whether these objectors should be required to spend one cent more in prosecuting their objection in the teeth of that massive non compliance with the legislation, which, as we speak, the application is admittedly invalid, there has been no application made under 133 to excuse - or section 111, to excuse non compliance with regulation 33.
PN10646
There is an existing application under regulation 190, which as yet hasn't been determined but has enormous problems in front of it, as is shown in my learned friend's submissions, and the whole organisation has demonstrated itself to be incapable of functioning as an organisation, much less as an industrial organisation. The discretion at section 111(1)(g) is a discretion to refuse to allow proceedings to go forward as the application is currently invalid, and there is no application under regulation 133 to rectify the situation. The application as presently constituted cannot succeed.
PN10647
So to that extent there is no argument about that it cannot succeed. What the applicant asks is for time to go through all those processes, to put their application back to where it should have been two years ago, and to do it through the auspices of a non existent shell organisation, which has never functioned as such. In my submission, if the Commission exercised the discretion under 111(1)(g)(iii) in relation to the proceedings as they presently stand, all the parties will be spared having to go through all of those processes.
PN10648
If these surgeons are so determined to have an industrial organisation registered, then they are not forever cut out by the application that we bring. This application will be killed off. If they want to come again they can come again at some time. It has not been put in the submissions that this will forever close down industrial representation, separate industrial representation by surgeons, it won't do that, it can't do, and the organisation can come up and do it again with a real organisation that actually exists and functions in accordance with its rules.
PN10649
So that the effect of the application made is to, as my learned friend Mr Parry puts it, it will prevent all of these multiple applications for validation and rectification being brought. My submission is, so it should. The parties should no longer be subjected to this and to these multiple inefficiencies or deficiencies on the various applications, some made and some yet to be made, which are necessary in order to put this application back on the rails. It is just, to use the vernacular, it is just too far gone and the patience of the Commission in relation to an application of this kind, in my submission, should run out at some point.
PN10650
Your Honour, there are just a couple of very short points in relation, I think, which are matters that your Honour raised. I think your Honour asked a question of my friend as to whether there was a difference between the role and function of organisations in relation to changing their rules, and things of that kind, dependent upon whether they were registered organisations or unregistered organisations, your Honour, and invalidities associated with all of that.
PN10651
Your Honour, there are some provisions in the Act which seem to reinforce the position that if an organisation doesn't have the rule it is effectively very difficult, if not impracticable, for it to do anything much about that. And sections such as section 253ZD, which deals with the question of amalgamations, and anything that is done in good faith in relation to an amalgamation, even if the authority doesn't exist or it is done invalidly, then it can be ratified by the Court.
PN10652
There are provisions under the Act which allow for the validation of activities or registered organisations. Unregistered, unincorporated associations only appear to be bound in relation to the common law principles to which reference has been made, and the contract theory to which reference has also been made. They are also, however, constrained by section 190, in that there is an incapacity, there is an added incapacity to vary their rules with any legal effect unless and until the Commission has given its leave to do so, but other than that there doesn't seem to be, if an organisation of that kind alters its rules in a way which is invalid, that is legally ineffective, it would appear, and if it is legally ineffective then it is necessary for legal effect to attach to such an activity in order to qualify under 188 or 189, well, then they simply fail that test.
PN10653
And that is the position here. This organisation, as I say, currently has an invalid application before the Commission, and it currently has no rules capable of operating as a real and valid organisation. It requires a string of indulgences by the Commission in order to achieve that result, and all of the outcomes of all of those applications are entirely uncertain, and many of them, in my submission, cannot succeed.
PN10654
Your Honour, the only other matter, I think, with which I intend to deal, and I leave the balance of the submissions in reply to my learned friend Mr Bromberg and to Mr Warren, is that from paragraph 76 onwards my learned friend purports to deal with and makes submissions in support of the section 190 application. I don't want my silence in relation to any of those matters to be misconstrued, so I won't be silent. Can I say that regulation - my learned friend submits that there is no difficulty in the organisation altering its rules and then seeking leave to do so, and seeks support from the decision of Deputy President Moore, the relevant part of which is set out in paragraph 81 of his submissions.
PN10655
In my submission, were that so, were that to be correct, then regulation 40 could not be complied with. And that, with all due respect to Deputy President Moore, as he then was, that observation appears to be wrong and ought not be followed, because regulation 40 is written in such a way that plainly contemplates alteration in accordance with leave granted.
PN10656
THE SENIOR DEPUTY PRESIDENT: What his Honour says there goes to not what regulation 40 says, it goes to what section 190 says. There is nothing really inaccurate about the statement that is there. What you are saying is that, well, what follows on, there may well be other provisions that you might look at and say, well, you really can't put the cart before the horse.
PN10657
MR HERBERT: Yes, in short terms. And it is expressed in terms of having, one can only do those things. An association - it appears to contemplate or to require that an association which has altered its rules in this context will or shall do certain things, but in order - and it appears to be consistent with the scheme of the Act that the objectors be given an opportunity to deal with those things, etcetera. That can't be done unless you are an organisation described in the opening words of regulation 40, that is, an association that has altered its rules in accordance with leave granted by, you can't alter your rules in accordance with leave granted by, if you have altered your rules, but leave has not been granted by.
PN10658
Now, if by happenstance, as is the case here, an alteration occurs in February, but the leave isn't granted until post May, assuming the 190 application were to go forward, then there has been no compliance. It doesn't say 35 days after leave, it says 35 days after altering its rules. So that the 35 days, in accordance with the 190 application, 35 days has now passed. The organisation can't comply with that rule. It is not an organisation that can at the outset. When it becomes an organisation which has leave, any alteration, it can't alter its rules in accordance with that leave because the rules have already been altered. So the whole thing is a cart before the horse situation, and so regulation 40 cannot be complied with.
[3.05pm]
PN10659
Now, that would then require, in effect, it would appear, an application under regulation 133 to be excused from complying with regulation 40, which doesn't appear to be the scheme of the Act at all, and that would - and again, as I mentioned earlier, regulation 133 only applies in special circumstances. Well, it would hardly be a special circumstance that a party has unilaterally elected to put itself in a position where it can't comply with the regulation, a regulation which is there for the protection of the other parties largely, and then come to the Commission and say, well, I took a punt, I elected to do it this way even though the regulation reads another way, I now want to be absolved of having done it in that way.
PN10660
I have sought, in effect, to amend the rule first, as it were, to place pressure on parties presumably, and say, look, what we have already done, we really wanted the indulgence of being allowed to do what we have already done as opposed to applying first and making a case first to the Commission as to what they want to do at some time in the future. Now, if they elect to go that way, and are therefore unable to comply with regulation 40, there would be no special circumstances for the purposes of regulation 133 to allow non compliance with regulation 40, one would think, expressed as clearly as regulation 40 is, and there is no opposite conclusion to be deduced from section 190.
PN10661
Section 190 logically appears to suggest that you can't do something without leave, and the regulations say you have got to do something after you comply with your rules when you have got that leave. Any party who elects to do it the other way is stuck with what they have done. So that that part of my friend's submissions, in my submission, are to be rejected. The case for leave is still in front of us, and any rule changes which have occurred in February of this year, if that is what occurred, and my friend goes to it in his materials, which is why I mention it, anything that is done or has been done purportedly to alter the rules of the organisation is legally ineffective because leave has not yet been granted, and it will be legally ineffective even when leave is granted because they will have to go and do it again.
PN10662
But as I say, that is not the end of it. Because in order to prove what they intend to prove under section 190, they need to prove that their members aren't their members and their officers aren't their officers, and the application in those respects, and regulation 33 has not been complied with, so they have got to come back for a section 33 application as well. And the submissions in relation to unfairness to objectors, it is said that the SAS gave notice of the intentions that it had some time ago.
PN10663
The unfairness situation here, so far as it is necessary to go to it as part of the public interest considerations under 111(1)(g), the unfairness is all against the objectors here. At the end of April 2003, the serious submission is put by the applicant that they have all along, until February 2003, had no rules, and that we have been litigating about a set of rules that have never came into effect. All along we have had no organisation, all along we have had no officers, all along the case that everybody has been running and spending money on isn't a case at all.
PN10664
What we want to do is to bring a section 190 application to restore those matters. So that the objectors in that sense, and the Commission, have been misled 100 per cent by the lack of adherence by these applicants to their own rules and their own requirements. It is not accidental, it is not having a go at a wider eligibility rule than they might otherwise have been entitled to, and being trimmed back or being territorially ambitious, or anything of that kind, which is often a reason for rules being pared back. This is a case of sheer indolence on the part of the applicant.
PN10665
And the objectors now are being told, having turned all this up and having based much of their objection on much of this material, are now being told that they are now going to bring into existence a functioning organisation for the first time, and then we have to deal with all of that. In my submission there is no question of unfairness here to the applicant because the applicant has caused all of this. The unfairness would be to the objectors having to sit here through the round of applications which are in front of us now, must be in front of us now under section 190 and 133, and possibly section 111, in order to put this case back on the rails, all at the expense of the objectors sitting here dealing with all of that in circumstances where none of that should have been necessary, and none of it was caused by the objectors, and all of it was caused by the applicants.
PN10666
For those reasons, in my submission, this application should be now dismissed. And the most compelling of all of the reasons is that to which I adverted earlier, namely, that as no person connected with this organisation has ever complied with any one of its rules since those rules came into - from the day those rules came into effect until the present time, the organisation has no continuing or never has had any continuing legal existence since 14 August 2001, and as such an application seeking to be prosecuted by a few individuals who want to sponsor, continue to sponsor this fiction, ought not to be allowed to continue any further, and the parties should not be - the objectors, in particular, should not be confronted with the ongoing legal costs of having to continually defend applications of that kind.
PN10667
For those reasons it is in the public interest. It is not in the public interest that such a deficient application should continue to be foisted on the parties now that it has all been revealed, and the Commission ought to send those persons away. If they wish to come back at some later time, as I say, the rights of surgeons who wish to be industrially represented will not be affected in any particular way other than that they will need to present themselves as a professional and functioning organisation before this Commission should even continue to hear the application. For those reasons, as I say, the application should be dismissed.
PN10668
THE SENIOR DEPUTY PRESIDENT: Mr Herbert, just one question. During the course of your submissions this afternoon, in particular, you have referred to persons named as the holders of office. Are you able to readily identify amongst the documentation the document that identifies the offices in the association, and the one that identifies the holders of office?
PN10669
MR HERBERT: Your Honour, my copy of the material has a statutory declaration of Mr Brazenor. I took you to this on Monday.
PN10670
THE SENIOR DEPUTY PRESIDENT: Yes, I have that.
PN10671
MR HERBERT: Which has a wad of material attached to it. It is dated 14 August, and appears to have been filed on that day.
PN10672
THE SENIOR DEPUTY PRESIDENT: That doesn't appear to identify any particular attachment as setting out the list of offices and officers.
PN10673
MR HERBERT: No, it doesn't. However, there follows a document called state chairman, and then following that is a document which has craft group secretary addresses and telephone numbers, and then one has neurosurgery offices.
PN10674
THE SENIOR DEPUTY PRESIDENT: I have those two documents. Were you aware of any other document in that material?
PN10675
MR HERBERT: Because none of the attachments are actually marked, I have taken the next document, which then has names and addresses and contact details. That goes to 160-something, 163. We were told - and again, that is not identified with a number, but it does say that - the stat dec says that there are a copy of the current membership list of the Society of Australian Surgeons attached with the letter C, and that document is the third document in the bundle.
PN10676
THE SENIOR DEPUTY PRESIDENT: Well, in the documents as filed it does appear behind a divider that is marked attachment C, but then so do also do the other two documents you referred to, the one headed state chairman, and the one listing craft group secretary addresses, etcetera.
PN10677
MR HERBERT: Yes. Well, there are - - -
PN10678
THE SENIOR DEPUTY PRESIDENT: Well, what I am getting to, you are not aware of any document - and I don't want to hold us up today - you are not aware of any document that actually lists the offices and/or lists the officers?
PN10679
MR HERBERT: No.
PN10680
THE SENIOR DEPUTY PRESIDENT: Well, it is probably something I should properly address to Mr Parry in any event. I was just concerned there might be a document missing from the file that I have.
PN10681
MR HERBERT: No. The other lists appear to be lists of persons who attended the inaugural meeting. And I should then correct the submission to that extent. The application itself is deficient in that it doesn't list, for the purposes of regulation 33, it doesn't list the offices, other than perhaps looking in the rules, it certainly doesn't list the officers who hold the offices. The only reference to that would appear to be a reference in paragraph 2 of the statutory declaration, I was appointed as transitional president of the Society of Australian Surgeons, and a reference in the material in the motions, that persons were appointed, and Mr Brazenor president, and that is motion number three, fill immediate and transitional basis the positions of president, secretary and treasurer as follows. Graeme Brazenor, Richard Arnot, Tony Taylor.
PN10682
THE SENIOR DEPUTY PRESIDENT: Well, I don't want to delay us any further. I just wondered whether there was some document that you were specifically referring to.
PN10683
MR HERBERT: No. The rules say there are offices, because nobody has been elected to any of those offices, any list that purported to say that persons were holders of particular offices, must be wrong because no elections under those rules could possibly be taken to have done that, and there is no provision for transitional officers.
PN10684
And to the extent to which one can deduce from some of the other material, who were the transitional officers up until that point, they may have been up to that point, but on 30 November, at the very earliest, or the very latest, they ceased to hold any authority, and probably on 14 August, but there is nothing in the application materials which is capable of being a true and correct statement as to the office holders as is required by regulation 33.
PN10685
And that is, for the reasons that I mentioned when I made that submission, one of the bases upon which a section 133 application would need to be made.
PN10686
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Bromberg?
[3.18pm]
PN10687
MR BROMBERG: Your Honour, before I begin my submissions, your Honour, on the point that you raised with my learned friend, might be assisted by some cross-examination of Mr Brazenor that I was involved with. It begins at paragraph number 8006, and it goes through to about 8021, I think, where I asked him about where the list of office holders was, and effectively he said, well, what we have given is a list of offices, but not office holders.
PN10688
Now, your Honour, can I begin with what I might call the non compliance with the application with the scheme for registration. Your Honour, there is a scheme for registration of associations, which scheme is to be found in both the Act and the regulations, and which the operation and intent of which should also be interpreted by reference to nearly 100 years or jurisprudence on the question of registration applications and the need of associations upon registration.
PN10689
In our respectful submission the scheme contemplates this. It contemplates a process where an application is made, and thereafter the application is, if objection is taken to it, to be subjected to an adversarial process. It is a process which necessarily must involve the applicant giving due notice to the applicant - I am sorry, to objectors or potential objectors about the nature of its application and some of the fundamental characteristics of it.
PN10690
It is a process which allows objectors to object, it is a process which limits objectors to the objections taken rather than making the - rather than leaving the objector unencumbered in terms of the objections that it takes. It is a scheme which, as your Honour, I think identified probably firstly in the NTEU case, and perhaps again in the VPF case, it is a scheme with a great deal of history which does put on an objector a heavy onus in the sense of requiring the objector to put a foundation behind its objections in order to require an answer from an applicant in relation to the particular matters put in issue.
PN10691
And much of the scheme and the requirement in the scheme for the objector to be given notice of the application and the fundamental characteristics of it is catered for by regulation 33. It has work to do in the scheme of registration, it requires that an application be accompanied by particular documentation giving particular and quite specific information about the nature of the application.
PN10692
Down the road the scheme envisages, as regulation 36 does, for objection to be taken to registration. And objections, of course, can only be made based upon some notice and some identification by the applicant of the nature of the application and the fundamental constituency of it. And at a minimum, your Honour, at a bare minimum on any view, what an applicant must provide notice of is, at the very least, its eligibility rule.
PN10693
Now, we all know how important that is in the scheme, we all know that every union in the country really looks at gazettals in relation to applications for registration, and every union in the country regularly seeks to ensure by reference to those gazettals and, in particular, the provision of the eligibility rule in the gazettal, every union seeks to make some assessment at that point as to whether its interests are or are not put in issue by the applicant and the application for registration.
PN10694
So that the scheme clearly requires notice and it requires notice of the eligibility rule together, of course, with the rules that the association has and seeks to be registered in accordance with. That is expressly dealt with in 33(1)(c)(v). And it is hard to contemplate how an objector could set out its objections, including the ordinary category of objection going to whether or not the rules of the association meet the requirements of the Act, which is a ground in section 189(1), it is hard to contemplate how an objector could give its grounds without being told what the rules of the applicant association are.
PN10695
An objector also needs to know the membership of the applicant association, including, as your Honour rightly pointed out, I think, in argument with my learned friend Mr Parry, because at the very least one ground of objection is that there aren't 50 employees, and one can't make that objection without some notice of what is claimed by the applicant to be its membership list.
PN10696
Now, to this point, your Honour, this case has been run on the basis that the notice required by regulation 33 to be provided to the applicant was provided by the application filed together with all of the documents that were attached thereto. And until November of last year there was no demur from that of any sort by the applicant. All we had was confirmation both in the outlines submitted and in the evidence put, and, in particular, confirmation that the rules being relied upon by the applicant were the rules that were filed with the application.
PN10697
And to date, or at least until November of last year, where my learned friend in a paragraph adverted to the argument he put more fully today, at least until that time this case was run on what I might call alternative three in my learned friend's submissions, that is the alternative put at paragraph 62, namely, that the rules of the SAS are those as filed. But any submission, my learned friend identifies two other alternatives. The first is that the rules of the association are constituted by the resolutions passed on 23 June, and those that would be implied by law. That is the first alternative.
PN10698
The second alternative is that the rules did come into existence and they operate in conjunction with the resolutions passed at the meeting of 23 June 2001. Now, it is clear, on our submission, that when you go back to the application, if the primary way in which my learned friend now puts his case is to be accepted, and that is that it is alternatives one or two that the Commission should accept as fact, not alternative three, it is clear that the application was either a nullity, or if not a nullity, an application which is non compliant and which may be capable of amendment to bring it into compliance.
PN10699
Now, we submit that the application is a nullity, not capable of rectification by any leave given by the Commission. Now, I know that your Honour has gone to the question of whether regulation 33 is mandatory or not, and the consequences of failure, and your Honour did that in the VPF case at paragraphs 49 through to 54. In doing that, your Honour did go to long standing authority that compliance was mandatory, although your Honour also adverted to some authority that an amendment could be allowed, and your Honour falls in favour of the more flexible view.
PN10700
Now, I am not sure that I can, and I am not going to attempt to change your Honour's mind on that point, but we do say that, with respect, there is a great deal of jurisprudence on this issue which doesn't stand necessarily consistent with the view that your Honour has made, and we want to reserve our position about that. But even on the basis on which your Honour puts it, the capacity to grant an application to amend is a capacity limited to procedural matters, matters of purely technical objection.
PN10701
Now, in our respectful submission, there is nothing procedural or technical about the fact that an application which must be made with a set of rules of the association has not so been made. It is not like a situation where somebody has been put on a list of members who shouldn't be there because they are ineligible. In fact, going back to the debate your Honour had with my learned friend, whilst an amendment to the list might be permitted, what we have here is an association that doesn't seek to amend its list, it seeks to replace a list.
PN10702
It seeks, as my learned friend's submissions now suggest, to tell your Honour that whereas the list initially was of 162 persons, the list should never have gone beyond, on any view, the 71 or so that attended the inaugural meeting. And the list that came with the application, your Honour, simply doesn't meet the characterisation of a list of members of the association, because the list that was provided with the application was so devoid of any link to what, in fact, was the list of membership, that it wasn't a list of members at all. It was simply a list of persons that Mr Brazenor thought were members.
PN10703
It didn't come within a bull's roar of being the list of members. And whereas a genuine attempt made on a reasonable basis to provide the Commission with a list may well be susceptible to amendment, because it may well be the case that there has been a slip or an inadvertent inclusion, but that wasn't the case here. What we had, according to the argument my learned friend now wants to put before the Commission, is nothing that can be characterised as the list of members of the SAS as it existed on 14 August, nothing that can be characterised as the list of offices or the list of officers, nothing that can be characterised as the rules, if the rule are, as my learned friend suggests, not the rules as filed, but rules to be implied.
PN10704
So we say, your Honour, that even accepting that a non complying application can be the subject of an application for leave to comply, that pertains to procedural difficulties rather than substantive difficulties, and we have got a substantive difficulty here of substantial dimensions. Now, even if leave to amend could be given in order to rectify substantive rather than procedural amendments, my learned friend has not made an application for that. Regulation 133 gives the Commission - - -
[3.35pm]
PN10705
THE SENIOR DEPUTY PRESIDENT: I think if you look at the NTEU decision and the VPF decision, I am not sure that at any stage I said I would exercise a power under regulation 133 to overcome any difficulty. I think I indicated I would do it under 111, didn't I?
PN10706
MR BROMBERG: Yes.
PN10707
THE SENIOR DEPUTY PRESIDENT: And that was what I said was the essential difference between the old powers of the registrar and the powers of a designated presidential member under the regime that has applied since the early 90s.
PN10708
MR BROMBERG: That is true, your Honour; your Honour did say that. But whether the power is to be exercised by reference to section 111 or regulation 133, it is not, in our respectful submission, if it is to be exercised by reference to section 111, to be exercised in a way which ignores regulation 133 in its entirety. In other words, regulation 133 does expressly deal with an application for an exemption from compliance. And one would have thought, your Honour, that even if the power is also now reposed in section 111, that the circumstances and potential for conditions to be imposed on the grant of exemption as specified in section 133(1), would inform the exercise of power under section 111.
PN10709
THE SENIOR DEPUTY PRESIDENT: But one is, for example, a power to exempt an application for registration from providing a list of members. Now, I am not saying you would exercise that power, but theoretically you are empowered to do that, and that is under the regulation. What you might do under section 11 is allow the documentation filed with the application to be amended to provide the correct list of members. They are two different approaches, aren't they?
PN10710
One is exempting from a requirement, so the requirement doesn't have to be met. The other still requires the requirement to be met, but allows you to amend documentation, for example, in order to meet that requirement.
PN10711
MR BROMBERG: Yes. But, your Honour, an exemption in these circumstances may not have any different effect to the allowability of an amendment. So that if you are exempted from being required to put a list of members in because your list of members that you put in initially is wrong, there is little difference between that, your Honour, and the Commission exercising a power to allow an amendment of the list.
PN10712
THE SENIOR DEPUTY PRESIDENT: Well, there is a big difference. If you exempt them from putting in the list of members, how does the Commission come to a conclusion that (a) it has members, and (b) those members are of sufficient number?
PN10713
MR BROMBERG: Well, because there may be evidence about that. The fundamental point, your Honour, is that what the regulation seeks to do in keeping with the scheme is to provide for notice, to provide, in a sense, to give the application a set of pleadings. And just like a Court would exercise its discretion when an applicant seeks in the middle of its case to amend its statement of claim, what the regulation envisages and what the power, if there is a power that resides in section 111(1), what it would envisage in relation to the scheme at hand is the Commission looking at questions such as prejudice.
PN10714
What would be the prejudice of allowing an amendment, in particular, to the objectors? And that is why regulation 133 speaks of special circumstances. It is not sufficient for someone to come along and say, look, I just want to be exempted, or I just simply want to alter. One needs to identify a basis, a foundation, a reasonable rational basis upon which the Commission can exercise a discretion. We are talking, irrespective of where the power is to be found, we are talking about a discretionary exercise.
PN10715
THE SENIOR DEPUTY PRESIDENT: But as you say, there has been no such application made either under regulation 133 or under section 111.
PN10716
MR BROMBERG: And that, your Honour, is quite fundamental, it is quite fundamental. There has been no application made for an amendment. And in the absence of an application either for an amendment or an exemption, this proceeding must proceed on the basis of the application as made. It must proceed on the basis of the particulars as given in the documents which were required to be filed and which were filed with the application.
PN10717
THE SENIOR DEPUTY PRESIDENT: Or, alternatively, the applicant has to choose which of the three options it wishes to pursue, and make an appropriate application to amend.
PN10718
MR BROMBERG: Exactly, your Honour.
PN10719
THE SENIOR DEPUTY PRESIDENT: Or exempt, whichever way you look at it.
PN10720
MR BROMBERG: And the onerous nature of the proceeding, and perhaps one of the most fundamental reasons why the proceeding ought not be allowed to continue in the public interest, is that the applicant refuses to make an election. The applicant doesn't make an election and put before your Honour an application to amend. What the applicant seeks to do is have us all here deal with all issues on all of the alternatives possible, and then its submissions at the end of the day, perhaps in the last word it has to say on its application, it will say to your Honour, well, your Honour has the discretion to allow an amendment, and if your Honour forms a view that the evidence establishes this rather than that, then your Honour should amend.
PN10721
Now, your Honour, that is not an appropriate way in which a proceeding of this sort should or can be conducted. It is a bit like a plaintiff before a Court coming along and saying, well, we don't know what our case if, but if your Honour believes it is A, then we seek leave to amend our statement of claim at the end of the day to fit with whatever facts your Honour thinks were the true facts.
PN10722
Now, in our respectful submission, the application made, and until amended, is an application made on the basis of the rules filed are the rules of the SAS. That is the current position, and without an application to amend and the grant of any such application, if that could happen, your Honour has a proceeding before you which is proceeding on that basis and can't proceed on any different basis. Therefore, as matters stand at the moment, your Honour must regard this application as proceeding on the basis that the rules filed with it are the rules of the SAS.
PN10723
Now, then we come to my learned friend's semantic argument about what is the meaning of filed. I don't want to say a lot about that, your Honour. It is clear, in our respectful submission, that filed means lodged. I am not sure that it is helpful in this respect, your Honour, to try and use the Act as a dictionary for what the rules meant when it used the word filed in rule 39. In our respectful submission you just apply the ordinary meaning to the word, and there is no distinction to be drawn between filed and lodged.
PN10724
And to suggest that those who adopted the rules were conscious of a relevant distinction between filed and lodged, in our respectful submission, is fanciful. What they meant is clear, what they meant was, when these rules are lodged with the Commission, given over to the Commission, they operate. Therefore, your Honour, the rules of the SAS, in our respectful submission, are clearly the rules as filed, and our learned friend is stuck with the pleadings, as it were, at least until your Honour considers any application to the contrary.
PN10725
Accordingly, also given that the rules are the rules as filed, no officer of the association contemplated by the rules made the application in accordance with the requirements of regulation 33, and exemption from that. I suppose, your Honour, that is an issue about exemption, not alteration. Your Honour can't amend - - -
PN10726
THE SENIOR DEPUTY PRESIDENT: But on one argument, the argument is that the rules as filed, or as lodged, didn't operate until lodgment.
PN10727
MR BROMBERG: Yes.
PN10728
THE SENIOR DEPUTY PRESIDENT: Why weren't the transitional officers the relevant officers?
PN10729
MR BROMBERG: Because at the time that the rules were lodged spontaneously with the lodging of the rules - - -
PN10730
THE SENIOR DEPUTY PRESIDENT: That is this, yes, this argument we had yesterday, Monday, yes.
PN10731
MR BROMBERG: Yes. Spontaneously with the lodging of the rules, the rules do not in any way recognise Mr Brazenor or Mr Taylor. And that is a problem that on any view could only be dealt with by an exemption, not by an amendment. And my friend makes no application for exemption, nor does he indicate that there would be special circumstances which would justify it. Now, if your Honour is against us on the question of whether an application for amendment needs to be made before your Honour can take into account any consequence of such an application, we say that even if an application for amendment was made, it would not succeed.
PN10732
The uncontroversial facts are in the motions of 22 June 2001, and the meeting that is recorded in those minutes. Your Honour would not grant leave to amend if an application was made unless your Honour was satisfied that there is a factual basis for the amendment sought. In other words, if my learned friend got up and sought leave to amend the application by amending the current reliance on the rules as filed, and seeking to rely instead on an unwritten set of rules to be implied - and there are problems with that, that I will come to - but if my learned friend sought an amendment of that sort, your Honour would not grant the amendment unless your Honour was satisfied that there was a factual basis to support the amendment.
PN10733
And there is no factual basis, in our respectful submission, to support an amendment of that sort even if it were applied for. What the motions in question did, your Honour, was - and I quote the third part of motion two:
PN10734
The meeting resolved to adopt as a draft constitution a set of rules attached hereto and marked with the letter A.
PN10735
Now, Mr Parry, in his submission, reads the word draft as meaning non binding. But it simply means draft that is subject to later review. Draft doesn't mean non binding. Draft contemplates that the rules may have a temporary character, binding in the interim until a final set of rules is ratified by the members. Now, the other way in which my friend seeks to hang on his argument is by paragraph 6 in motion 5, which provides that the meeting authorised the transitional officers to finalise a set of rules for final ratification by members.
PN10736
Now, your Honour, my friend - there is a suggestion in my learned friend's submission that it is not until ratification of the rules that they are binding. But the members of the SAS did ratify the draft rules, they adopted them. It is not as though the draft rules have not been ratified. Every member of the association on my learned friend's case was at this meeting, and the entirety of the association, if it existed, voted to ratify the draft rules.
PN10737
All that subrule 6 seeks to do is to foreshadow the fact that the temporary rules adopted will be subjected, if necessary, to a finalised set of rules which will need to be ratified. And in our respectful submission the position is clear and unequivocal, and if an application for amendment was made, it would not be granted on the basis that the rules of the SAS as created by this meeting do not include and are not constituted by the rules as filed.
PN10738
And I say that for an additional basis, your Honour. Because even if your Honour is persuaded that the rules are not - that the rules of the SAS are to be implied, and that they are to be discerned by implication, surely the starting point in that exercise would be the rules put to the meeting. What my learned friend seeks to do is to say the SAS has implied rules untouched by the terms and provisions of the rules that were put to the meeting and adopted, even if only as a working document. My friend says, well, you can't have regard to that, you imply the rules from some other basis.
PN10739
On our respectful submission, if nothing else - and there is some cases on this, your Honour, that I might see if I can find - it is a bit like the situation where parties have agreed to heads of agreement, that is, an agreement to contract on a particular basis. Heads of agreement are enforceable as a contract. They may not be the final draft of the terms of the contract that the parties intended, but they are nevertheless a contract, and if a contract is made and it is to be implied in circumstances where heads of agreement were agreed to, it is almost impossible to think that whatever provisions are to be implied would be free of the provisions contained in the heads of agreement.
PN10740
So in our respectful submission, even if my learned friend could persuade your Honour that you ought to grant an application to amend on the basis that the rules are to be implied, when you go to the exercise of implying that what the rules are, you come back to the rules as provided to the meeting. And no implied rules, in our respectful submission, could sensibly be arrived at without inclusion of the rules adopted as a draft constitution by reference to motion two.
PN10741
So in our respectful submission, any application to amend of the kind not made, but which my learned friend might suggest could be made, is bound to fail. Can I say further, your Honour, about the notion of implied rules, and I am reminded, your Honour, of Federal Court cases, many of them including Jess and Scott, and I think others, where the notion of implied rules of the union is not a notion agreed with. I think the way that the Court approaches the question is that, whilst an implication might be drawn from the rules of the union, a union does not have implied rules. And I think Gray J in Jess v Scott says as much.
PN10742
THE SENIOR DEPUTY PRESIDENT: I think there are comments made that were contrary to what was said in Mitchell, McClure v Mitchell, and those HEF cases.
PN10743
MR BROMBERG: There were contrary comments made, your Honour?
PN10744
THE SENIOR DEPUTY PRESIDENT: The comments made in, I think, Jess were contrary to what had previously been said in the old Industrial Court in the HEF, Hospital Employees Federation line of cases.
PN10745
MR BROMBERG: That might be so. I think your Honour is right.
PN10746
THE SENIOR DEPUTY PRESIDENT: I think there was an order made for compliance with a rule that was said to be implied.
PN10747
MR BROMBERG: Yes. But the position since the Full Court's decision in Jess v Scott - and, your Honour, this may not have terribly much bearing on the issue here because there the Court was dealing with observance of the rules and the statutory scheme, but nevertheless the notion that unions have implied rules, is not a notion that is known to the jurisprudence under section 209 as it stands at the moment.
PN10748
But in any event, the fundamental point I want to make, your Honour, is that the scheme for registration that is set up here by the Act does not contemplate an application by an association which does not have a set of express rules, and simply seeks to rely on an implied rule or rules. My learned friend, in support of the notion that an association didn't need rules, refer to what your Honour said in the VPF case. It is at paragraph 19 of his submission. Now, your Honour knows what your Honour meant, but what I understood your Honour - - -
PN10749
THE SENIOR DEPUTY PRESIDENT: I am glad you think that, but go on.
PN10750
MR BROMBERG: It is at the top of page 7 of my learned friend's submission. Your Honour said there in the third line:
PN10751
There was at that time no legal requirement for the VPF to have rules, that is at the time that it was established.
PN10752
And that is clearly correct at law, your Honour. I am not trying to quibble with that statement. But what your Honour was not there addressing was whether, when an association seeks application for registration, it is required to have rules. That is a different issue. And in our respectful submission the scheme here contemplates that an association seeking registration must have an express set of rules, and that must be so because the scheme, as I said earlier, requires the association to put forward a set of rules in order that its character and its fundamental elements are known and can be the subject of objection of objectors see fit, and also because the Commission has an obligation to satisfy itself that the association meets the criteria under section 189(1).
PN10753
Now, your Honour had an exchange with my learned friend on this issue, where your Honour said this to my friend. Your Honour asked him how would the objectors - sorry, your Honour asked, if the rules are implied, where is the eligibility rule, and how do objectors conduct their case if the eligibility rule is not expressed, but to be implied? My learned friend said that, well, they can find out what the implied eligibility rule was by reference to the meeting establishing the association.
PN10754
Well, how do you put that in a gazettal, your Honour? How is an objector supposed to discern whether its interests are enlivened by an application in relation to an eligibility rule unable to be put into concrete form without potentially tens of hearing days where what did and didn't happen at a particular meeting is the subject of evidence so that some implication could be drawn as to the eligibility rule intended, and to be implied by what occurred at the meeting?
[4.02pm]
PN10755
Your Honour, this is so outside the scheme that has existed for nearly 100 years to be, with respect, absurd. My learned friend has not been able to point to a single case in the 100 year history of these applications where an association with implied rules has come before the Commission, let alone been granted registration. And the notion, with respect, is not a notion known to the scheme, and ought to be rejected. And no objector, your Honour, should be subjected to proceedings where the applicant can't identify its rules. And this applicant can't.
PN10756
It tells you they are implied, but it doesn't tell you what they are. My learned friend has not made any attempt to spell out what the rules of this association are if the rules are to be implied. And we are expected to conduct this litigation on that footing. Now, then can I move your Honour to the question of the capacity of an association to alter its rules. My learned friend's submissions were to the effect that the argument put by the objectors really hung on, rose or fall on the question of whether or not the SAS could alter its rules.
PN10757
With respect, he puts that position too highly. But in any event his argument misses one fundamental point. Can I say at the outset, your Honour, that we don't at this stage seek to quibble with the notion that at law an unincorporated association can, by unanimous decision - and by that I mean every member of the association - amend its rules where there is no provision in the rules for amendment. And that is what the cases that my learned friend has gone to seem to say, and there are other cases that do that as well, your Honour, and I don't need to trouble your Honour with that.
PN10758
Now, I will come back to one aspect of that. But even if that is so, my learned friend's argument presumes that the SAS continues to exist and is able to alter its rules, or at least, I suppose, my learned friend presumes that the SAS was able to alter its rules because it did exist as at the 10th, I think, of February of this year, when the matters that are subject to the section 190 application occurred. Now, your Honour, in our respectful submission, as the application currently stands on the pleadings as they are at the moment, the rules as filed came into operation on 14 August 2001.
PN10759
Those rules describe an operating union. They require elections, indeed, they required elections in November of 2001. They require meetings, they deal with branches, they require audits to be performed, they require a range of activities in furtherance of the objects as specified in the rules. But an operating union, for all the reasons that my learned friend Mr Herbert went to, never came into existence. There is not a single step that my learned friend has been able to point to that occurred after 14 August 2001, which demonstrates that the rules and objects of the SAS were in any way adhered to or furthered.
PN10760
In our respectful submission the SAS is moribund and became so well prior to February 2003. There are some decisions that I have in mind which I may need to refer your Honour to, but beyond those decisions there is a section in the work that my learned friend Mr Parry referred you to, that is Fletcher on non profit associations. There is a section at page 175 dealing with dissolution of associations, unincorporated associations that is, a section headed, failure of the substratum.
PN10761
There are a number of ways which the learned author notes an association can cease. He deals with termination in accordance with the rules, by agreement, and then there is a category by the Court, and there is also a category numbered C, failure of the substratum. Now, can I refer your Honour to that. What the authorities here deal with is a situation where in essence, by reason of fundamental inactivity, there has been frustration and dissolution of the association spontaneously, is the term, spontaneous dissolution is the term that some of the cases utilise.
PN10762
And we say, your Honour, that by reason of the inactivity since 14 August, and in particular by reason that with the failure to hold elections, the capacity to generate activity in accordance with the rules was taken away from about November of 2001. There has been in this case a failure of the substratum of the sort that the learned author Mr Fletcher speaks of by reference to the various cases there referred to. And I refer your Honour to pages 175 to 177. I can make my copy available if your Honour doesn't have access to it.
PN10763
THE SENIOR DEPUTY PRESIDENT: No, that will be all right, thanks, Mr Bromberg.
PN10764
MR BROMBERG: Now, going back to my friend's proposition. Even if the association was not moribund by reason of a failure of its substratum, the cases that he goes to are essentially cases where the Courts have said where the rules are silent as to the capacity to alter the rules, a unanimous vote of the membership is capable of so doing. And there is probably another case which is on the same point, and probably the most recent case in the series, and it is Radmonovich v Nedeljkovic (2001) NSW - I am sorry, it is (2001) 52 NSW LR at 641, it is a decision of Young CJ of the New South Wales Supreme Court, and he deals with a situation pertinent to a church, Serbian Orthodox church, where, as he notes in paragraph 62, there was an attempt to adopt a new set of rules in circumstances where, as he notes at paragraph 204, there was no provision in the rules dealing with alteration, but despite that a unanimous resolution could make a fundamental alteration so as to alter the constitution, but that could not be done by a simple majority.
PN10765
So that the case, the English case that my learned friend referred to is not followed, and the contrary English authority in a case that his Honour here does refer to, that is, Harrington v Sendall, is preferred by his Honour. And it seems that if an alteration is to be permitted, it could only be an alteration made by every member unanimously, but, again, it is a case, your Honour, that deals with a situation where the rules are silent as to alteration.
PN10766
We would say, your Honour, however, that the exercise of a preliminary power such as the power to amend a constitution must accord with the terms of the constitution where the constitution does provide for a means by which the constitution can be altered. Members, your Honour, are entitled to entrench their constitution and to ensure that any change to that constitution is not altered without reference to it and without accord to the terms of it.
PN10767
And so cases where a rule alteration procedure is dealt with by the rules expressly are to be distinguished from cases where that has not occurred, because in those cases there has been a positive decision by consensus that the constitution is to be altered by a particular means, and the constitution is entrenched unless altered by those means. And in our respectful submission that is not a situation that can be overturned by a unanimous resolution not made in conformity with the rule operation process in the constitution.
PN10768
Now, there may be authorities on this, your Honour. I can't give your Honour off the top of my head authorities on that. I think that there are authorities in relation to registered organisations, but I can't help your Honour more about that at this stage. Those are the matters that I want to deal with on what I might call broadly the rules question. My learned friend has made submissions on the additional argument put, that is, the argument put by reference to section 188(1)(b). I am trying to find that, your Honour.
PN10769
THE SENIOR DEPUTY PRESIDENT: Page 21.
PN10770
MR BROMBERG: Yes. Now, your Honour, if your Honour goes to the rules, the eligibility rule in question, your Honour will see that two things are absent from the eligibility rule as found in rule 2 of the rules as filed. The first thing is that there is no reference to the persons eligible being persons employed or usually employed. My learned friend's submissions has made no attempt to deal with that. Secondly, there is no reference to persons who are independent contractors being able to be members.
PN10771
The variation which the 190 application contemplates is a variation that would fix those two glaring omissions, and in our respectful submission the application to vary makes a point that we make, and that is, firstly, you wouldn't need to be employed or usually employed. You could be, for instance, retired, you could be, for instance, a surgical trainee employed or not employed, but simply going through a course of some sort. This eligibility rule does not confine itself to employees, independent contractors or officers, and it must do, because only an association with a rule, eligibility rule, that is, that is so confined, is an association that can be characterised as the kind of association contemplated by section 188(1)(b).
PN10772
My learned friend's submission focuses on the distinction, it focuses somewhat on the notion of who can be an independent contractor in these circumstances, and he wants to suggest that a practitioner operating their own business, not an employee of anybody, but performing surgery in a private hospital is an independent contractor within the meaning of 188(1)(b).
PN10773
Now, what we say about that is this. That the notion of independent contractor as found in section 188(1)(b) is to be interpreted in accordance with the context and also in accordance with the obvious intent here of parliament, and it is an intent to allow for the registration of unions whose membership is fundamentally and substantially an employee membership, and that is made abundantly clear by section 188(2), and also allow for an association in a subsidiary way to have as its members workers who perform the same kind of work as employees who are in a different kind but not detached form of relationship with an employer party, namely, independent contractors.
PN10774
It is not a rule, as my learned friend's submission would suggest, that would allow anybody providing through their business a service to the public to become a member of a union because that person is not incorporated. My learned friend suggests that an independent contractor is simply an individual, and that any individual who runs any form of business providing services which could be provided by employees is able to join a union for employees of that kind.
PN10775
If that was right, your Honour, and for instance, if Myer Emporium was owned by an individual rather than a corporation, Mr Myer could be a member of a union of salespersons, because the services that Mr Myer provides, that is, selling products to the public, are services - is work of the kind that an employee performs in the selling of consumer items.
PN10776
Now, that just can't be right. What the section intends, in our respectful submission, is that persons who are employees who provide services, who are employed and provide services to their employer, are able to form a union, and with them persons who also provide services to not their employer at law, but a person who receives their services in the same way and for the same purposes as that person would receive those services from an employee. Those persons are also able to be members of an association.
PN10777
And, in our respectful submission, the notion that principles of a law firm can join a union for employee lawyers, or barristers can join a union for employee lawyers, or, as I say, merchants owning and running a merchandising business can join a union for salespersons, is simply out of step with the plain intent of section 188(1)(b), and self employed surgeons running their own businesses are disassociated from the provision of services to a hospital in the way that employees so do, cannot be and do not come within the purview of paragraph (b).
PN10778
Your Honour, I don't think that this is the occasion to deal with the merits of the section 190 application. My learned friend has put submissions to you about that, but I don't think that they are intended to ask your Honour to deal with the merits of that application. We have put submissions in opposition to that application, and those submissions set out the grounds of opposition. I think the exercise of taking your Honour to section 190, from my learned friend's perspective, involve suggesting to your Honour that in theory this association can change its rules, and look at what the association intends to put before the Commission as some form of perhaps evidence that the theory can be put into application.
PN10779
In our respectful submission all that does is point to a number of difficulties and point to the unfairness involved in the Commission not dismissing this application now. Can I go to that unfairness and begin by saying this. Part of that unfairness, your Honour, is occasioned upon the objectors because as at this moment the objectors have not been put in the position of knowing the case that they must meet. The case in the pleadings, as it were, appears to be a case not to be pursued. But what the real case is has not been identified. What the implied rules are has not been identified. Who the officers are has not been identified. Who the members are has not been identified.
PN10780
So fundamentally the unfairness involved is occasioned by the refusal of the applicant to identify its case in circumstances where it notes it has problems, but makes no application to rectify them in order to provide proper notices to what its case really is. Secondly, we say that the unfairness is occasioned by the fact that even if our learned friends were to go through the process of seeking amendments and the like, we shouldn't now have to meet a new case.
PN10781
And that is particularly so, your Honour, because the consequences of the ineptitude involved in the making of this application - and I don't seek to suggest anyone in particular has been inept - but the application in itself is so inept that the consequences of bringing some form of regularity into the proceeding are vast and onerous on the objectors. And the objectors simply should not be required to have to deal with the consequences of the ineptitude in question.
PN10782
It is not of their making, it is entirely of the applicants making, and the applicants are now potentially exposed to a section 190 application which will involve questions of who the members were at the time that the association was formed, whether those same individuals, in fact, met in February of this year, whether by reason of a proxy process, those who are said to be founding members but did not attend, can have their participation count, whether rules passed which are in their terms - I am sorry, motions passed which are in their terms seemingly retrospective can have application, there are a minefield of legal issues involved in the section 190 application, not the least of which are issues which have been the subject of agitation before the Commission, including questions such as whether an alteration, whether leave to alter can be given to an alteration that seeks to alter the identity or nature or aims of the association.
PN10783
And I refer there to the Amalgamated Printing Trade Employers Union of New South Wales case, and in the judgment of Kelly J. I do have a reference to it. I can give your Honour a copy of it, but I can't quite identify the CAR reference, your Honour. It looks like 1942, but my copy has omitted it. Also the Federated Clerks Union of Australia and Australasian Transport Officers Federation case, out of the 1951 CARs, a copy of which I can hand your Honour, which seems to stand for the proposition that there is no power to give leave to alter or substitute an entirely different description of the industry in or in connection with which the organisation is registered.
PN10784
There are questions going to the alteration of eligibility rules here. Now, that might be a problem, let alone the minefield potentially involved in your Honour deciding whether or not an application for leave can post date the alteration process itself. Now, your Honour, all of that arises out of the ineptitude of the application, that and many other issues which are going to be the subject of detailed submissions before your Honour, arise out of that ineptitude, ineptitude which the objectors have had no part in, cannot be asked to take the blame for, and ought not be put to the onerous task of having to spend resources and time to deal with those matters.
PN10785
And my learned friend's suggestion that there is no unfairness, is quite wrong. And that is not to take into account, your Honour, the unfairness involved in our learned friend's allowing the objectors - I am sorry, I shouldn't say our learned friend - the unfairness involved in the SAS allowing the objectors to participate in 13 days of hearings, cross-examine on a particular basis witnesses throughout the country, only to find that at the death knell of the hearing's process, at least the evidentiary hearing process, the applicant wants to entirely change the way it wants to puts it case.
PN10786
And my learned friend suggests, well, we haven't pointed to any prejudice in that respect. Well, your Honour, my learned friend now relies on - this is just an example - my learned friend now relies on the matters set out at paragraph 37 of his outline. He now wants to run a case based on the proposition that nobody was admitted to membership of the association because both Mr Brazenor and Mr Arnot did not jointly approve membership applications.
PN10787
That was a matter, your Honour, I extracted from Mr Arnot in cross-examination. I don't think I ever would have done that, your Honour, if I knew the case that my learned friend now wants to run. In other words, that cross-examination and lots of other cross-examination like it was directed to meet a particular case. Now it is sought to be used against us. And the objectors, in our respectful submission, suffer prejudice of that kind should the application not be dismissed.
PN10788
Then finally, your Honour, can I deal with paragraph 101 of my learned friend's submission. He says there that the final argument advances that somehow the society is a different association than it was on 23 June, and how this could be the case has not been articulated clearly. It is clearly not consistent with the law nor the facts, that persons who met on 10 February were the inaugural members less resignations.
PN10789
Now, your Honour, the argument I put was really this. There are statements filed with the Commission not yet tendered, but there are statements filed with the Commission which indicate that on 10 February there was a meeting attended by nine persons, and I think two others were observers. That fact is not disputed by anybody. And one is entitled to ask, once one sees the minutes of that meeting, is that the same association as has come to the Commission and tells the Commission that it was constituted by 70 founding members, and then added to that were another 200 or so to constitute 350 or so members with a particular set of rules, etcetera.
PN10790
We don't need to put the argument, your Honour, that what happened on 10 February was an entirely different association that was created if there was a creation of anything. What we do say, however, is that it seems that the carriage of this proceeding is now based on what nine people did on 10 February. And before the Commission allowed this proceeding to continue, the least that my learned friend should do is satisfy the Commission that this proceeding is still being carried on by the same association that made the initial application.
PN10791
And it is not our onus in this respect to satisfy your Honour. My learned friend has carriage of that issue, in our respectful submission, and your Honour knows that something happened on 10 February which looks out of keeping with other evidence provided to your Honour about the nature of the SAS. What we said and what we still say is, the onus is on our learned friend to demonstrate that this application, if it is allowed to continue, is an application, the carriage of which is continued by the association purported to have made it.
PN10792
In any event, your Honour, your Honour would not need to deal with that if your Honour was satisfied, as we say your Honour be satisfied, that this is a case apt to the exercise of discretion under section 111(1)(g), and we ask your Honour to exercise that discretion and dismiss the application. If your Honour pleases.
PN10793
THE SENIOR DEPUTY PRESIDENT: Mr Warren?
[4.37pm]
PN10794
MR WARREN: Your Honour, I am mindful of the time, I will be very brief. Can I say at the outset that we support and adopt the submissions put by my learned friend Mr Herbert and Mr Bromberg. We emphasise that final point but one that was made by my learned friend Mr Bromberg, that, indeed, it was the federal council of the applicant association that could amend the rules, and that federal council was never elected. Yes, there was a federal board that could amend rules in a minor way, but that federal board was never established.
PN10795
It is perhaps trite to just add up the numbers on 23 June 2001, 22 persons then got together to form an association. On 14 August 2001, the list read at about 163, and then on 12 February 2003, some nine persons with proxies totalling a number of 41 in total purported to amend those rules. Now, we note that my learned friend Mr Parry, on behalf of his client association, states among other things in paragraph 65, that the legal position is that all members of the association can unanimously agree to vary the contract between them.
PN10796
Well, I note that my friend also says that there was a number of resignations. It is, we say, an extreme and absurd situation where nine persons, on 12 February 2003, can do something that then purports to change the rules of an association formed by some 72 persons. We don't know whether those resignations were in accordance with the rules, there is no evidence of that. I don't for a moment doubt my learned friend Mr Parry's instructions on that matter, of course, or his submissions on it.
PN10797
But clearly it is in the public interest that the draft rules that were adopted by this body in June 2001, which were brought into existence on 14 August 2001, which have never been complied with and cannot be complied with are then the rules that are brought before this Commission for registration. It is simply entirely in the public interest that these proceedings be brought to an end because those very rules that were brought into existence cannot now be complied with, and cannot in all sincerity now be registered with this Commission as rules of a federally registered organisation.
PN10798
It is trite to say that here we have an association now before the Commission which appears to be an entirely different association to that which one came before the Commission prior to 13 hearing days. And now we have a different and new purported association with different rules and different eligibility rules coming before this Commission to say that, well, really we can pick up where we left off before, where this association of which we do not have - I withdraw that - this other association that was formed of some 72 members is now altered in a significant way by some nine members and proxies.
PN10799
So, your Honour, it is clear for all the reasons that have been put, in my respectful submission, by my learned friend Mr Bromberg and Mr Herbert, that it is clearly in the public interest that this proceedings be brought to an end and be permanently brought to an end. And if it is that the Society of Australian Surgeons wish then to proceed with a fresh application some other time and matter for that. But these proceedings, if they are to proceed beyond today, there is still no end in sight, because, indeed, the association have a number of applications yet to be made to bring them within the compliance of the Act and the regulations, as have been clearly pointed out by my learned friend Mr Herbert, and as such it is a nonsense to now proceed with these proceedings to be varied and changed again in some attempt to bring them within the regulations and the Act.
PN10800
In all the circumstances, your Honour, your should exercise your power under section 111(1)(g), and bring these proceedings to an end. If the Commission pleases.
PN10801
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Bromberg, if you intend to refer me to any decisions, as I indicated prior to lunch, if you could do so and notify the other parties of those decisions by close of business tomorrow.
PN10802
MR BROMBERG: As your Honour pleases.
PN10803
THE SENIOR DEPUTY PRESIDENT: Did you wish to say anything further, Mr Parry?
PN10804
MR PARRY: Yes, your Honour. The position that has been advanced this afternoon and this morning has changed the sort of arguments that were run yesterday, and I would seek to be able to say something about those matters.
PN10805
THE SENIOR DEPUTY PRESIDENT: Why do you say they have changed? There have been submissions made in reply to what you have put, aren't there?
PN10806
MR PARRY: Yes, your Honour. The case before you up to date has been conducted on the basis that the rules applied. The legal positions that we have advanced, there are a couple of options as to the effect of the resolutions. The third option that we have described, that is, that the rules were adopted, we have not expressed a preference for either one to date, but we are content to have the matter proceed on the basis that the third option applies, and that may well be the correct option. Now, in that event - - -
PN10807
MR BROMBERG: Well, your Honour, I object to this. My learned friend has been asked to justify why he ought to be heard further. What my learned friend is now seeking to do, having heard the case put against him in reply, my learned friend is really now making another application on the basis of objections that he has heard in relation to this existing application. And the process has got to end somewhere, your Honour, and that is the very purpose of this application. The process should end here and now.
PN10808
My learned friend has had every opportunity, he has had every opportunity at least since November, and one would have thought much earlier than that, to have told us the basis upon, the altered basis upon which he wishes to run his application.
PN10809
MR HERBERT: Could I join in that objection also, your Honour, on this footing. Part of the response to the reply to my learned friend this morning, to the submissions he put this morning, is that even in the teeth of a section 111(1)(g) application which says we don't know what the case it is we have to meet, it is shifting everywhere, my friend put up three cases in his response. In reply those at this end of the bar table said, well, in effect, they should be forced to elect, they haven't elected. We still don't know what case, having heard all of that, we still don't know what their case is.
PN10810
My friend is now seeking to respond and elect now in running, after he has heard all of that. His time to elect was this morning when he replied to our application, where we said there effectively is no case, to tell us what his case was. In effect, he told us three cases, and now he is seeking to have another go to try and narrow it down to one. In my submission that is not something he should be allowed to do.
PN10811
THE SENIOR DEPUTY PRESIDENT: Mr Parry, what do you say to that?
PN10812
MR PARRY: I am sorry, your Honour?
PN10813
THE SENIOR DEPUTY PRESIDENT: What do you say to that?
PN10814
MR PARRY: Well, your Honour, what has happened was that yesterday an application was made which was predicated on the basis, as I outlined this morning, the transcript said this is the position, this is the position, they have adopted the rules, and we make the application on that basis. Our submissions today have said there are options. We haven't elected one of those options. And if your Honour goes through those written submissions carefully, we didn't say one was ahead of the others, or we selected one particular option.
PN10815
But what we are telling your Honour - I am sorry. So they put up that position. They make submissions, and what their position is, is across a range of issues into discretionary issues. They say we shouldn't be able to advise the Commission of the steps taken to comply with section, or to follow through our section 190 application. We shouldn't be able to tell the Commission what steps have now been taken. Now, in my submission it is appropriate that we say we are content to have this Commission deal with the material with the case that has been conducted, that is, as is made quite clear by Mr Herbert this morning, a case has been conducted on the basis that the rules apply.
PN10816
Now, for the purpose of these submissions we are prepared to accept that that can be the course taken. Now, if that so be assumed, and it is open to the Commission to so find then, in our submission it seems to be accepted that the basis for the application doesn't stand. The basis for the application was this knock-out position that we made rules, they were immutable. Now, it seems to be accepted, after argument today, that the rules can be altered in certain ways. And having heard that and having heard that concession, in my submission, I am entitled, and my client is entitled to say we are content to have the case proceed on that basis.
PN10817
And their position seems to have, in my submission, gone from, they can't do it, to they can do it, but they are not allowed to do it, they shouldn't be allowed to do it, they shouldn't be allowed to do it because the organisation hasn't complied with the Acts and regulations, or it is going to raise hard questions of fact and law.
PN10818
THE SENIOR DEPUTY PRESIDENT: Well, as I apprehend the argument that is put there, is that if the rules, what we might call the draft rules, or the rules as lodged apply, they haven't been complied with, there aren't rule changing bodies within the organisation, therefore leave can't be given within the association, therefore leave can't be given to anybody, or if leave is given there is no one who can actually go about and change the rules. Your reply to that, as I apprehend it, was, well, notwithstanding the rule changing rule, a meeting of all the members can change the rules.
PN10819
MR PARRY: That is so.
PN10820
THE SENIOR DEPUTY PRESIDENT: And if you were to exercise the third option, then to a large extent the whole question would stand and fall by whether or not you are right in that last contention.
PN10821
MR PARRY: That is so.
PN10822
THE SENIOR DEPUTY PRESIDENT: Now, I don't understand that to have been conceded by Mr Herbert or Mr Bromberg or Mr Warren.
PN10823
MR PARRY: I am sure they didn't use those words, your Honour.
PN10824
THE SENIOR DEPUTY PRESIDENT: And certainly there was an argument put to me about whether the cases that you relied up being situations in which the rules governing the body contain no rule changing rule.
PN10825
MR PARRY: Well, there is two answers to that. Firstly, a number of the authorities I referred to are corporations cases, your Honour, and I don't think it was ever said in any of those cases that there were not rules that would have allowed the changes or other steps to take place. It was said that you could ignore the formalities and all the corporators could get together and make whatever decision together that they saw fit. I don't think any of those cases went to that point, and they certainly didn't rule that out.
PN10826
Secondly, here it is argued against us that we are incapable of changing the rules because of the operation of the rules, in effect. It is put against us that we can't change the rules because they operate to preclude us. And we simply say - and I haven't seen Radmonovich's case that my learned friend Mr Bromberg refers to, but from his description of it he referred to unanimously can make fundamental alterations. Now, in my submission all the authority, we submit, is consistent with the proposition that all corporators or all members can vary their joint contract, and that is our proposition.
PN10827
THE SENIOR DEPUTY PRESIDENT: Well, certainly in relation to that issue I don't apprehend that the case put by the objectors yesterday has changed. What seems to have changed now, and these applications under section 111(1)(g) seem to have been prompted to some extent by what happened on 21 November last year, where, as I recall, you first raised the possibility that there were no rules, or at least that the rules, the set of rules as lodged were not the rules.
PN10828
MR PARRY: I raised the three possibilities I raised in these proceedings.
PN10829
THE SENIOR DEPUTY PRESIDENT: You raised them then. Now, the cases are then being put on the basis of that and other material, as I apprehend it. You replied. At no stage up until now, as I understand it, have you made it clear that you are prepared to have the case run, the substantive case run on the basis of the third alternative.
PN10830
MR PARRY: I have said that we all end up at the same place eventually, whichever alternative was chosen, we would end up at the position where, in February 2003, we could do what we did, and by the mechanism we did it. Now, I simply indicate that we are content to have it run on the basis of the third option, which is the way the case is run to date.
PN10831
THE SENIOR DEPUTY PRESIDENT: And if I were - does it follow then that if I were to come to the conclusion that Mr Bromberg, Mr Herbert and Mr Warren are right in relation to the power to alter the rules, then I should uphold their section 111(1)(g) argument?
PN10832
MR PARRY: Well, you would find that the corporation could not alter its rules. Our position is, leave aside the evidence which isn't before you. Our evidence is it can be done. Whether it was done or not ultimately - - -
PN10833
THE SENIOR DEPUTY PRESIDENT: Yes, sorry. If I find it can't be done.
PN10834
MR PARRY: Yes, you have to find, your Honour, that it can't be done.
PN10835
THE SENIOR DEPUTY PRESIDENT: If I find it can't be done, then I would have to uphold their applications, wouldn't I?
PN10836
MR PARRY: Well, that, if your Honour so finds, your Honour so finds.
PN10837
THE SENIOR DEPUTY PRESIDENT: I am just trying to clarify the way it is being put.
PN10838
MR PARRY: But we, I think, in fairness, have put up findings that are open to your Honour. As we have indicated, we are content for the case to continue to run as it has run to date. If your Honour pleases.
PN10839
MR BROMBERG: Your Honour, can I say something?
PN10840
THE SENIOR DEPUTY PRESIDENT: Before you do, Mr Parry, if Mr Bromberg does notify us of some cases he wants me to have regard to, do you wish to have some time to make any comment about those?
PN10841
MR PARRY: Yes, your Honour. Your Honour asked me about the consideration to these sort of authorities with regard to club law and other matters, and I am vaguely aware that there have been references to some of these cases in some of the old decisions of Industrial Registrars, and it might be that they might give assistance to your Honour in this matter.
PN10842
THE SENIOR DEPUTY PRESIDENT: Yes. Well, I will ask you to do the same, and then any of the parties will have the opportunity to make comment.
PN10843
MR PARRY: As your Honour pleases.
PN10844
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Bromberg?
PN10845
MR BROMBERG: Just a couple of quick comments. Your Honour, on 21 November 2002, my learned friend said this at 9971:
PN10846
It will be the primary submission of the society at the appropriate time that that resolution -
PN10847
that is the resolution adopting the draft set of rules -
PN10848
did not actually adopt a set of rules, but rather put before the meeting an indicative set of rules which were to be revised and amended before a final draft was put before the members of the society.
PN10849
Now, your Honour, he indicated at that time that that will be the primary submission being put. It was put yesterday. The indication given in November, as your Honour rightly notes, is the reason that the section 111(1)(g) application has been instigated, or a large part of it, and what my learned friend has just done is no more than more evidence of the fact that this application slips and slides into different parameters based on different propositions, depending upon whichever way the objectors respond to it.
PN10850
Now, your Honour, that is just an unacceptable way in which proceedings before the Commission ought to be litigated, and my learned friend, in what he has just done, clearly demonstrates the prejudice being suffered by the objectors, and the oppressive way in which this application has been brought and is being conducted, and his further reason, in our respectful submission, why the application ought to be rejected and dismissed for 111(1)(g) grounds.
PN10851
Another matter, your Honour, very quickly, is that we make no concession and have made no concession, as my learned friend alleges. Our point, even based on the adoption of the rules as filed is twofold. Firstly, the rules can only be amended by way of the process for amendment contained in those rules, but in any event the rules can't be amended because the association is moribund, it doesn't exist, in order to amend its rules, even if it could amend its rules by reason of a unanimous vote of the entirety of its membership. If your Honour pleases.
PN10852
THE SENIOR DEPUTY PRESIDENT: The Commission will reserve its decision. The parties will be made aware of that decision as soon as it has been made. The matter is adjourned.
ADJOURNED INDEFINITELY [4.59pm]
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