2012 WAIRC 00935
ALLEGED NON-OBSERVANCE OF UNION RULES

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PRESIDENT

CITATION : 2012 WAIRC 00935

CORAM
: THE HONOURABLE J H SMITH, ACTING PRESIDENT

HEARD
:
WEDNESDAY, 13 JUNE 2012, THURSDAY, 14 JUNE 2012

DELIVERED : MONDAY, 15 OCTOBER 2012

FILE NO. : PRES 3 OF 2011

BETWEEN
:
ROBERT MCJANNETT
Applicant

AND

CONSTRUCTION FORESTRY MINING AND ENERGY UNION OF WORKERS
Respondent

Catchwords : Industrial Law (WA) – application pursuant to s 66 of the Industrial Relations Act 1979 (WA) for orders regarding alleged breaches of union rules – application made by respondent to strike out the application on grounds that include, abuse of process, allegations set out in charges not capable of proof of breach of a rule, no standing, lack of particularity and allegations out of time – construction of object clause considered – scope of the power of the President under s 66 of the Act considered – standing under s 66 of the Act considered – charges struck out – principles for the making of a costs order considered
Legislation : Industrial Relations Act 1979 (WA) s 26, s 27(1)(a), s 27(1)(a)(iii), s 27(1)(c), s 27(1)(o), s 49J(2), s 64B(1), s 64B(1)(a), s 66, s 66(1), s 66(2), s 66(2)(e), s 66(2)(f), s 71, s 72(5)(d), s 73(3)(b);
Industrial Relations Commission Regulations 2005 (WA) reg 59;
Associations Incorporation Act 1987 (WA) s 5(2)(b)
Conciliation and Arbitration Act 1904 (Cth) s 141, s 141(1G);
Criminal Code (WA);
Crimes Act 1914 (Cth);
Fair Trading Act 2010 (WA);
Workplace Relations Act 1996 (Cth).
Result : Application dismissed, costs order made
REPRESENTATION:


APPLICANT : MR R MCJANNETT, IN PERSON
RESPONDENT : MR T DIXON (OF COUNSEL)
Solicitors:
RESPONDENT : SLATER & GORDON

Case(s) referred to in reasons:
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Australian Education Union v Australian Principals Federation (2006) 158 IR 360
Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Brailey v Mendex Pty Ltd (1993) 73 WAIG 26
Cameron v Hogan (1934) 51  CLR 358
Civil Service Association of WA Inc v Director General of Department for Community Development [2002] WASCA 241; (2002) 82 WAIG 2845
D A Christie Pty Ltd v Baker [1996] 2 VR 582
Darroch v Tanner (1987) 16 FCR 368
Delron Cleaning Pty Ltd v The Australian Rail, Tram and Bus Industry Union of Employees, Western Australian Branch [2004] WAIRC 12163; (2004) 84 WAIG 2527
Hospital Salaried Officers Association of Western Australia (Union of Workers) v The Hon Minister for Health (1981) 61 WAIG 616
Kangatheran v Boans Ltd (1987) 67 WAIG 1112
Mcjannett v Construction Forestry Mining and Energy Union of Workers [2012] WAIRC 00291; (2012) 92 WAIG 507
Mcjannett v Reynolds [2009] WAIRC 00211; (2009) 89 WAIG 633
Mcjannett v Reynolds [2009] WAIRC 01282; (2009) 89 WAIG 2395
Mcjannett, in the matter of an application for an inquiry in relation to an election for offices in the Construction, Forestry, Mining and Energy Union, Western Australian Branch [2009] FCA 996
Mcjannett, in the matter of an application for an inquiry in relation to an election for offices in the Construction, Forestry, Mining and Energy Union, Western Australian Branch (No 2) [2009] FCA 1015 (10 September 2009)
McParland v The Construction, Forestry, Mining and Energy Union of Workers [2002] WAIRC 06935; (2002) 82 WAIG 2894
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v The Associated Northern Collieries (1910) 11 CLR 738
Re Reynolds [2011] WAIRC 00989; (2011) 91 WAIG 2212
Re The Construction, Forestry, Mining and Energy Union of Workers [2011] WAIRC 01175; (2011) 92 WAIG 6
Scott v Jess (1984) 3 FCR 263; (1984) 56 ALR 379
Singh v The Federated Miscellaneous Workers Union of Australia, WA Branch (1993) 73 WAIG 2674
Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699
Stacey v Civil Service Association of Western Australia (Inc) [2007] WAIRC 00568; (2007) 87 WAIG 1229
The Construction Forestry Mining and Energy Union of Workers v (Not applicable) [2011] WAIRC 01174 (21 December 2011)
The West Australian Locomotive Engine Drivers' Firemen's and Cleaners' Union of Workers v Schmid (No 1) (1996) 76 WAIG 639
Thompson v Reynolds [2009] WAIRC 00024; (2009) 89 WAIG 287
United Group Resources Pty Ltd v Calabro [2011] FCA 1408
United Voice WA v Minister for Health [2012] WAIRC 319; (2012) 92 WAIG 585 (Fiona Stanley Hospital (No 2))
Walton v Gardiner (1993) 177 CLR 378
Wauhop v Civil Service Association of Western Australia Inc [2003] WAIRC 08021; (2003) 83 WAIG 951
Woodside Burrup Pty Ltd v Construction, Forestry, Mining and Energy Union [2011] FCA 949
Wyatt v The Civil Service Association of Western Australia (Inc) (1997) 77 WAIG 3206
Reasons for Decision
Background
1 This is an application made by The Construction, Forestry, Mining and Energy Union of Workers (CFMEUW) to summarily dismiss the substantive application in this matter. The substantive application is for orders to be made under s 66(2) of the Industrial Relations Act 1979 (WA) (the Act) by the applicant who is a member of the CFMEUW. The applicant claims that the CFMEUW has not observed its rules. In the applicant's application filed on 16 December 2011, the applicant states that the grounds on which the application is made are:
Non observance of the rules of the union in particular but not confined to rule 3. Threats, violence, bribery, misappropriation of members [sic] funds and Tax evasion by officers of the CFMEUW.
2 After a directions hearing of the substantive application held on 20 January 2012, an order was made on 23 January 2012, that the applicant file and serve a statement of particulars that complies with reg 59 of the Industrial Relations Commission Regulations 2005 (WA): [2012] WAIRC 00028; (2012) 92 WAIG 404. The applicant filed a statement of particulars on 2 February 2012. The applicant later filed an amended statement of particulars on 10 February 2012 and a further amended statement of particulars on 16 February 2012. In these proceedings, it is common ground that the particulars the applicant relies upon are those filed on 16 February 2012.
3 Further orders were made on 17 February 2012 ([2012] WAIRC 00085; (2012) 92 WAIG 405), which required:
(a) the CFMEUW to file and serve by close of business on 1 March 2012 a request for further and better particulars of the applicant's amended statement of particulars filed on 16 February 2012;
(b) the applicant to file and serve his answer to the request for further and better particulars by close of business on 21 March 2012; and
(c) the applicant to file and serve written submissions by close of business on 21 March 2012 supporting the precise manner in which he contends that the rules of the CFMEUW have been breached in respect of each allegation he wishes to press in the amended statement of particulars filed on 16 February 2012.
4 The applicant filed his answers to the further and better particulars and what he says are written submissions on 21 March 2012. The applicant's written submissions are contained in the same document as the answers and are set out in a heading 'Relationship' which follows each one of the 47 'charges' which the applicant alleges are separate breaches of the rules of the respondent.
5 On 2 April 2012, the CFMEUW made an application for orders pursuant to s 27(1)(a) of the Act that the application be dismissed. The grounds of the application for summary dismissal are as follows:
1. The Application amounts to an abuse of process. Many of the issues raised in the Application and in the particulars to the Application have been the subject of findings and Orders made by Commission, including in proceedings in which the Applicant was involved.
2. The Application variously fails to identify conduct capable of giving rise to a breach of the CFMEUW Rules; or alternatively a CFMEUW Rule which is amenable to contravention.
3. There is no jurisdiction under s 66 to make the orders sought in the Application; and alternatively, the Applicant has no standing to seek such orders.
4. There is no public interest in proceeding to hear and determine an Application under s 66 of the Act which relies on conduct which is variously alleged to have occurred:
a. over a decade ago; and/or
b. at a time before the Applicant became a member of the CFMEUW (in April 2005)
5. The allegations in the Application and in the particulars to the Application are variously frivolous, vexatious, devoid of particularity (notwithstanding that there has been numerous attempts to particularise) and scandalous.
6. In the absence of an application with clearly defined grounds, it is not in the public interest to entertain an Application in the nature of the current matter in circumstances where the Applicant in this and previous matters before the Commission has been vexatious and has serially made serious allegations totally lacking in veracity.
7. Further grounds to be identified in the Applicant's submissions.
The alleged particulars of breaches of rules, request for further and better particulars and answers
6 In respect of each charge, the CFMEUW requested particulars which were as follows:
(a) Specify:
(i) all material dates, places and names;
(ii) each act, fact, matter, thing, circumstance, event, happening, occurrence, omission, error, neglect or default relied upon;
(b) Say whether the matter or thing was wholly or partly in writing, oral or to be implied, and:
(i) insofar as it was in writing, identify each document or paper constituting any part of it and say where and in whose possession that document or paper now is, when and where it may be inspected, and, if it has been lost or destroyed, say where a copy of it may be inspected and if there be no copy, give the material substance of it to the best of your recollection;
(ii) insofar as it was oral say when, where and between what actual persons, and whether face to face or by way of telephone, each conversation constituting any part of it took place and give the material substance of each conversation;
(iii) insofar as it was to be implied, state the acts, facts, matters, circumstances and things, and when and where they occurred or arose, from which the implication is to be drawn;
(iv) if the matter or thing (as the case may be) was made, entered into, carried out or done by a person acting, or purporting to act on behalf of or with the authority of another, give the like particulars as are sought above of the authority (express, implied or ostensible) of that person to act on behalf of that other;
(c) Set out precisely:
(i) the particular Rule of the CFMEUW which is said to have been breached for each Charge;
(ii) how the allegations in the Charge amount to a breach of the specific Rule of the CFMEUW identified in (c)(i) above; and
(iii) the order or relief under s 66 of the Industrial Relations Act 1979 (WA) (IR Act) sought in respect of the particular Charge.
7 The applicant describes each alleged breach of the rules of the respondent as a charge. In the first paragraphs of his statement of particulars of the charges filed on 16 February 2012 he states:
1. This further amended statement of particulars is filed by the applicant in support of the form 1 application in this matter.
2. The applicant and subsequent witnesses possess physical and testimonial evidence to corroborate all the claims made in this action.
3. Terms used:- In all instances in this document the term 'President' means Mr. Cam McCulloch and the term 'Secretary' means Mr. Kevin Noel Reynolds and the term 'Assistant Secretary' means Mr. Joseph Macdonald [sic] and the term 'executive' means the entire executive of the union at the time of the alleged offence or rule breach.
4. The applicant brings the following charges against the union being for misconduct, impropriety, tax evasion, maladministration, acts of violence against members and the public, and abuse of office amounting to multiple breaches of the rules of the union.
8 The particulars of each charge, the applicant's submissions of the manner of breach, request for further and better particulars and answers given are as follows:
(1) Charge 1 – Breach of r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (21) – The secretary, assistant secretary, and union organiser, Mark Hudston, conspired with Wayne Carey, site manager of Downer Energy Systems Pty Ltd, in or around October 2006 to have the applicant dismissed from his employment at the Alcoa Pinjarra co-generation project stage 2 where he was employed as an open crane operator and replaced by an inexperienced rigger and then entered onto the ERMS blacklist data base.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for the following:
(a) the alleged conspiracy;
(b) the ERMS blacklist data base;
(c) the inexperienced rigger;
(d) the applicant's employment contract; and
(e) whether the applicant was dismissed from his employment, and if so, the grounds or reasons given at the time.
Answer – All the requested particulars are held on file at the union office in relation to the wrongful dismissal case litigated at the time of the dismissal. The respondent should look to its own filing system before making such requests. This is not discovery.
Relationship (applicant's submission) – The act of arranging the dismissal in collusion with Wayne Carey is a clear and obvious contradiction and breach of the objects of the union r 3.
(2) Charge 2 – Breach of r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (21) – The abovementioned union officials in or around October 2006 also conspired with Wayne Carey to blacklist the stepson of the applicant, namely Joshua Daley, in a forthright attack upon the applicant.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) the alleged conspiracy;
(b) the employment history of Joshua Daley in the relevant period;
(c) the alleged blacklist; and
(d) how it is alleged the alleged blacklisting was a 'forthright attack upon the applicant'.
Answer
(a) The union conspired to list Joshua Daley on the ERMS blacklist.
(b) Joshua Daley was employed in the construction industry and was eventually removed from the ERMS blacklist by way of complaints to and investigations carried out by the ABCC.
(c) The blacklist is well known to the union as documented by the union in written correspondence to the members and government agencies and articles published in the union magazines.
(d) Joshua Daley was not a member of the CFMEUW at the time of the dismissal and blacklisting. He was, however, well known to Wayne Carey as the applicant had been attempting to secure employment for him at the same project. There can be no other reason for the blacklisting other than a forthright attack upon the applicant.
Relationship (applicant's submission) – The act of arranging the blacklisting in collusion with Wayne Carey is a clear and obvious contradiction and breach of the objects of the union r 3.
(3) Charge 3 – Breach of r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (21) – The union refused point blank to mount a proper defence of the wrongful dismissal carried out against the applicant by Downer Energy Systems Pty Ltd and refused to ask his replacement not to take his position operating a 250 tonne crawler crane as described above.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for the:
(a) wrongful dismissal;
(b) applicant's employment contract with Downer Energy Systems Pty Ltd;
(c) request for the mounting of a proper defence made by the applicant; and
(d) action the applicant asserts should have been taken.
Answer – Details of (a), (b) and (c) are held at the union office case file as stated at 1 above. This is not discovery.
(d) The action the union should have taken was not to delay proceedings by way of deliberate procrastination and to in the first instance request the replacement rigger not to replace the applicant as an open crane operator because the replacement rigger was hired and contracted as a rigger not as a crane operator and the applicant in fact assisted in the training of the replacement rigger to obtain his crane operators licence adding more ambiguity to the situation. Mark Hudston was clearly aware of these facts at the time and flatly refused to respond to it appropriately.
Relationship (applicant's submission) – The refusal to mount a proper defence to the dismissal in the prescribed time and refusal to prevent the inexperienced rigger from replacing an experienced crane operator was a clear contravention to the objects of the union r 3 and carries with it safety implications for other persons working in the vicinity of the 250 tonne crawler crane as well.
(4) Charge 4 – Breach of r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (21) – The union misled the applicant during his request for a wrongful dismissal claim by stating they could not do anything about the termination because of Work Choices. The union deliberately failed to compel Downer Energy Systems Pty Ltd to prove their operational requirement leading to the termination despite requests from the applicant to do so. The union did this because the secretaries and Mark Hudston were colluding with Downer Energy Systems Pty Ltd and the Chamber of Commerce and Industry of Western Australia (CCIWA) to cause the applicant's dismissal.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) the way in which the union misled the applicant;
(b) who on behalf of the union misled the applicant;
(c) to the extent that the union failed to compel Downer Energy Systems Pty Ltd as alleged, how it is asserted that such action was 'deliberate';
(d) what power did the union have to compel Downer Energy Systems Pty Ltd to prove their operational requirement; and
(e) the alleged collusion between 'the secretaries and Mark Hudston' and 'Downer Energy Systems and the CCIWA'.
Answer
(a) This is explained clearly in the charge apart from the fact it was verbally to some extent.
(b) Timothy Kucera and Mr Hudston.
(c) The union had the legal expertise and knowledge to know that they should have compelled Downer Energy Systems Pty Ltd to prove the operational requirement. The union was aware that the applicant had never been dismissed from employment in his history. The union did not do this because they were colluding with Downer Energy Systems Pty Ltd to dismiss and blacklist the applicant. Therefore, the action or moreover the failure of fiduciary duty was deliberate.
(d) The union had the power under the unfair dismissal provisions of the Act and the Fair Work Act 2009 (Cth) to force Downer Energy Systems Pty Ltd to prove their operational requirement. This has recently been stated to the applicant by FWA lawyer in Sydney who viewed the unfair dismissal case.
(e) The applicant was warned by union members on site just prior to the dismissal that union officials were conspiring against him. Following the dismissal a union official witness D1 has given a statement to the applicant that he heard Joe McDonald and others planning the event from the union office. The witness will be called to testify in the trial of this matter.
Relationship (applicant's submission) – Clearly this event is in contravention to the objects of the union r 3 and could also constitute and attempt to pervert the course of justice - contravention of s 143 of the Criminal Code (WA).
(5) Charge 5 – Breach of r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (21) – The assistant secretary was expelled from the Australian Labor Party (ALP) in 2007 after being video recorded acting in a grossly offensive manner that was publicised repeatedly on national television networks throughout the 2007 Federal elections bringing the union and all of its members into disrepute.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) in what way did the assistant secretary 'act in a grossly offensive manner'?;
(b) the expulsion from the ALP; and
(c) how the expulsion from the ALP amounts to a breach of the respondent's rules.
Answer
(a) The assistant secretary was videoed in an angry violent manner abusing a construction manager with the words 'this fellow is a fucking thieving parasite dog' and this video was broadcast repeatedly around the nation on several television networks in 2007.
(b) The expulsion from the ALP was equally publicised around the nation, particulars of which are well known to the respondent. The expulsion of Joe McDonald and subsequent resignations of Kevin Reynolds and Shelley Archer was canvassed on the ABC news again as recently as Friday, 16 March 2012.
(c) Refer to r 3(1), (12), (18) and (26) and the fact the union is or was at the time affiliated with the ALP and pays into the ALP funding with union members' funds as determined by the ALP caucus and management committee pro rata to the amount of members in the union. The expulsion clearly brought the union and its members into disrepute.
Relationship (applicant's submission) – The behaviour of the assistant secretary was in contravention to the objects of the union r 3 and could also constitute civil breaches of creating a public disturbance.
(6) Charge 6 – Discontinued.
(7) Charge 7 – Breach of r 3(1), (2), (3), (5), (6), (11), (12), (13), (15), (21) and r 26(3) – At the general meeting on 12 March 2008, the applicant asked assistant secretary Joe McDonald to arrange for the union to assist in a court action against ERMS or its proprietor Declan Hoare. The assistant secretary became abusive and would not allow a motion from the floor for the union to mount a court action against ERMS leaving the applicant and numerous other construction workers at the mercy of Declan Hoare who was perjuring himself in the Perth VRO court to prevent the applicant from investigating the blacklist.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for the:
(a) applicant's question or request to the assistant secretary;
(b) alleged abuse;
(c) manner in which it is alleged the assistant secretary 'would not allow a motion from the floor for the union';
(d) notice of motion by the applicant under the r 27 to have the item discussed at the meeting; and
(e) steps taken by the applicant to remedy the alleged conduct of the assistant secretary.
Answer
(a) The request was for the union to commence litigation against ERMS solutions for conducting an illegal blacklisting operation.
(b) The assistant secretary became angry when the request was pressed by the applicant and the applicant pointed to money wasting on Che Guevara T-shirts. Mr McDonald began shouting, ranting and waving his arms about.
(c) The assistant secretary shouted from the dais 'the union is not going to waste money on taking ERMS to court'. The president then closed down debate on the subject.
(d) Notice of motion was not allowed once the president closed down debate. Witness R1 who was present at the time will be called to testify at the trial of this matter and possibly others.
(e) Attendance at the general meeting of 9 July 2008 in the company of another blacklist victim witness J3 where the subject was raised again. Debate on the matter was again closed down by the president. An open letter to the union executive dated 14 July 2008 and copied to the national executive sent by facsimile and ordinary post to both entities. A letter to the secretary dated 8 July 2010 copied to the national secretary and delivered by facsimile and post. All letters remain unanswered.
Relationship (applicant's submission) – The actions of the assistant secretary supported by the president who was chairing the meetings were clear contraventions to r 3 and r 26.
(8) Charge 8 – Breach of r 3(1), (2), (3), (5), (6), (11), (12), (13), (15), (21) and r 26(3) – At the general meeting held on 9 July 2008, the president stifled debate from the applicant and his stepson, Joshua Daley, about being put on the ERMS blacklist. The secretary claimed there were no issues with the ERMS blacklist to warrant any action. The secretary and president went on to release numerous election flyers in the following weeks with the ERMS blacklist clearly listed as an issue on the advertising. The ambiguity of these actions against the interest of the members is obvious and a serious departure from the rules and ethics of the union.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) how the 'debate from the applicant and his stepson, Joshua Daley', was in accordance with proper meeting procedures;
(b) the stifling of the debate;
(c) the election flyers;
(d) the 'ambiguity of these actions';
(e) notice of motion by the applicant under r 27 to have the item discussed at the meeting;
(f) in what way was it against the interest of the members; and
(g) in what way was it a serious departure from the rules and ethics of the union.
Answer
(a) It was in accordance with proper procedures because we were both financial members and the floor had been open for general business. The president allowed the debate in the first instance.
(b) When the president realised the questions were about the union failing its fiduciary duty to protect members from the ERMS blacklist he closed down the debate.
(c) Several various election flyers were distributed by the president soon after these general meetings during the 2008 election period with clear propaganda exposing the ERMS blacklist. The incumbent union officials obviously have those election flyers in its records and this is not discovery.
(d) The ambiguity of these actions by the union is clear and gross given that they were receiving an avalanche of complaints from members at the time regarding the ERMS blacklist.
(e) As pointed out a notice of motion was disallowed by the president at both general meetings.
(f) It was clearly against the interests of the members for the union to stand by and do nothing whilst numerous members were being victimised and blacklisted by ERMS solutions and barred from working in the resources sector boom. In fact, several members were, by the failings of the union, compelled to take their complaint along with the applicant to the ABCC. During the ABCC investigation the name Wayne Carey came up numerous times in relation to complaints from other members.
(g) The objects and ethics of the union is to defend members from unscrupulous employers and victimisations. In particular, victimisations of shop stewards as the applicant was when he was blacklisted. As stated above, numerous victimised members of the respondent were compelled to go to the ABCC for help because the union refused to help.
Relationship (applicant's submission) – The actions and inactions of the union officials were clear contraventions to r 3 and r 26.
(9) Charge 9 – Breach of r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (21) – On 11 July 2008, the secretary wrote an ambiguous letter to the applicant with evidence the union had been trying to look as if it had been dealing with the ERMS issue and enclosed a copy of a letter from Helen Creed, WA Fair Employment advocate, dated 15 May 2008. The letter from Helen Creed instructs the secretary to take his concerns about the ERMS blacklist to the Federal jurisdiction. The union did not follow these instructions leaving the applicant and numerous other construction workers in Western Australia at the mercy of the ERMS blacklist system. This is a serious departure from the rules and ethics of the union.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) the ambiguity in the letter;
(b) the 'instruction' to the union by Helen Creed;
(c) in what way is this a serious departure from the rules and ethics of the union; and
(d) how this charge is reconciled with charges 1, 2 and 7 above.
Answer
(a) The ambiguity was in the fact the secretary had stood by and done nothing at the meeting on 9 July 2008 when the president stifled debate and was now writing me a letter pointing to a letter he already had in his possession on 9 July 2008 yet did not make any mention of it (the letter from Ms Creed) to the members at the general meeting.
(b) The instruction is clear in the charge and the letter from Ms Creed. Ms Creed directed the secretary to the Federal jurisdiction and he ignored the advice.
(c) The secretary did nothing about ERMS. He simply pretended to be doing something whilst actually using the blacklist himself to victimise members he does not like or feels were a risk of exposing the theft of funds from the members.
(d) There is no reconciliation. The charge is clearly about the no response to the letter from Ms Creed amounting to a failure in the fiduciary duty of the secretary.
Relationship (applicant's submission) – Clearly the secretary was aware of the blacklist and the concerns of his members. However, the failure of the secretary to act upon the instruction of the employment relations advocate and take a complaint about the blacklist to the Federal authorities is a departure from the objects of the union r 3.
(10) Charge 10 – Breach of r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (21) – On 14 July 2008, the applicant wrote to the state executive pointing out the issues with ERMS and breaches of the union rules. The letter was delivered by registered mail and facsimile and was ignored by the union. This is a serious departure from the ethics and rules of the union.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) the 'issues with ERMS' raised in the letter;
(b) the 'breaches of the union rules' raised in the letter;
(c) in what way is this a serious departure from the rules and ethics of the union; and
(d) how this charge is reconciled with charges 1, 2, 7 and 9 above.
Answer
(a) The union has the letter in its records and this is not discovery.
(b) Breaches of the union rules were not particularised in the letter because the applicant was still attempting to obtain a copy of the union rules at that time. However, the letter clearly points to misconduct by officials that could only amount to breaches of the union rules. Furthermore, at the time of writing the letter, the applicant had not yet heard from the union official who confirmed the conspiracy being formulated against him at the union office which he had been previously warned about by other union members at Pinjarra refinery.
(c) Ignoring the letter is clearly a serious departure from the rules and ethics of the union and any other union for that matter who might treat their members in such an appalling fashion. Ignoring the letter was itself a breach of the rules, regardless if any rule breaches had been particularised in the letter or not.
(d) There is no reconciliation. The charge is clearly about the ignored letter written and delivered on 14 July 2008.
Relationship (applicant's submission) – Ignoring a letter of this substance and committing the act of slandering union members (who were not present at the time) to the general meeting was clearly in contravention to the objects of the union r 3.
(11) Charge 11 – Breach of r 3(1), (2), (3), (5), (6), (11), (12), (13), (15), (21), r 12 and r 35(1)(a), (g), (h) and (i) and the Electoral Act 1907 (WA) – During the election ballots of 2008 and 2009 the secretary and president authorised the union to publish and deliver numerous repeated election flyers using members' funds siphoned off from levies and small private enterprises and did not seek authority to do this at a general meeting and did not submit an account of election costs to a subsequent general meeting.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for the:
(a) authorisations to publish and deliver numerous repeated election flyers using members' funds;
(b) funds that were used;
(c) alleged levies;
(d) alleged small private enterprises;
(e) alleged way in which the funds were 'siphoned off from levies and small private enterprises';
(f) rule that required 'an account of election costs' to be submitted to a subsequent general meeting; and
(g) how this charge can be reconciled with the outcomes in:
(i) Mcjannett, in the matter of an application for an inquiry in relation to an election for offices in the Construction, Forestry, Mining and Energy Union, Western Australian Branch (No 2) [2009] FCA 1015 (10 September 2009);
(ii) Mcjannett v Reynolds [2009] WAIRC 00211; (2009) 89 WAIG 633;
(iii) Mcjannett v Reynolds [2009] WAIRC 01282; (2009) 89 WAIG 2395.
Answer
(a) There were no authorisations other than from the president as published on the bottom of the election flyers.
(b) Cannot be particularised due to the refusal of the union to allow a book inspection in breach of r 33 of the respondent and r 33 of the BLPPU.
(c) Numerous levies were brought upon the members since 2001, including but not confined to, levies claimed to assist in legal funding claimed to be needed in relation to:
(i) The Cole Royal Commission.
(ii) Joe McDonald's never ending court problems.
(iii) The 107 members on the Perth to Mandurah rail project charged under the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) for an illegal strike. Further levies drawn from members in 2011. Further other material particulars are not available due to the refusals of the union to allow a book inspection, however, there are numerous witnesses that will be called in the trial of this matter with evidence of missing levy funds and refusals by officials collecting levy money to offer up receipts.
(d) Small private enterprises such as on site merchandising and union sponsored canteens at numerous construction projects around Perth and the South West such as but not confined to:
(i) The Perth desalination plant.
(ii) Fiona Stanley Hospital.
(e) The union continually refused requests for accountability of levy funds collected from shop stewards. When the applicant demanded a receipt for funds collected at the Worsley debottlenecking project in 2005 it was refused. Later when the applicant demanded receipts for levy funds collected at the Pinjarra Cogeneration project stage 2 it was initially refused after which a receipt book was begrudgingly supplied by Mark Hudston. Two weeks later the applicant was dismissed and blacklisted. The receipt book will become an exhibit in the trial of this matter. Numerous other shop stewards have come forward with similar information about refusals of accountability and may be called to give evidence in the trial of this matter. A large portion of the money was clearly pocketed by corrupt union officials either immediately after collection or by way of under the counter cash payments at the union office.
(f) Rule 15 of the rules of the respondent, r 15 of the BLPPU and r 36 of the CMETSWU.
(g) It cannot be reconciled with those matters as the issue of siphoning members' funds to pay for election material was not included in those matters.
Relationship (applicant's submission) – The act of stealing members' funds is clearly in contravention of the rules nominated in the charge and also constitutes contraventions of the Criminal Code.
(12) Charge 12 – Multiple breaches of r 27(1)(a) - (i) and r 35(1)(a), (g), (h) and (i) – As proved in the matter of PRES 3-6 of 2008 the union failed its duty to keep records of general meetings of the union despite the respondent holding most of the assets amounting to a massive breach of trust and accountability and/or dereliction of duty by the executive.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) how this charge raises an issue not previously dealt with by the Commission;
(b) (other than what was before the Full Bench in PRES 3-6 of 2008) the way in which the union failed its duty to keep records of general meetings;
(c) (other than what was before the Full Bench in PRES 3-6 of 2008) the alleged breach of trust and accountability; and
(d) (other than what was before the Full Bench in PRES 3-6 of 2008) the alleged dereliction of duty by the executive.
Answer
(a) The Commission did not deal with this matter in its entirety. The matter of PRES 3-6 of 2008 was not a complaint about rule breaches, nor was it a complaint about failure to keep proper financial records. The matters in PRES 3-6 of 2008 did not go before the Full Bench.
(b) PRES 3-6 of 2008 was not before the Full Bench, and in addition to that the applicant cannot answer this whilst the union adopt a position of refusing to allow a proper book inspection and the charge only refers to an issue that was proved in PRES 3-6 of 2008.
(c) The Full Bench did not hear PRES 3-6 of 2008, and the charge only refers to what was proved in that matter.
(d) The Full Bench did not hear PRES 3-6 of 2008 and the dereliction of duty was plainly obvious and touched upon by Ritter AP in his reasons for decision. There is a further breach of trust toward the trustees of the union in the dereliction of duty or breach of the rules by the trustees.
Relationship (applicant's submission) – Failing to keep proper records of general meetings is clearly manifest breaches of r 27 and r 35. General meetings are also convened to obtain authority from the members to dispose of assets and use funds for various purposes. In failing to keep the records the union also contaminated the responsibilities of the trustees as defined in r 12.
(13) Charge 13 – Breach of r 33 – During the general elections of 2008/2009 the union refused to allow the applicant to inspect the books causing the applicant to make application to the Commission to carry out the book inspection. When the applicant was finally granted a book inspection the union instructed their lawyer to obstruct the inspection which he did.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) the application made by the applicant to the Commission;
(b) the union representative who is alleged to have refused a book inspection;
(c) the day in which the alleged refusal was said to have occurred;
(d) the lawyer who is alleged to have obstructed the inspection;
(e) the manner in which the lawyer is said to have obstructed the inspection;
(f) how this charge is to be reconciled with the facts relied upon in the applicant's affidavit sworn on 7 September 2009 and filed in PRES 5 of 2009 on 8 September 2009; and
(g) how this charge can be reconciled with the outcomes in:
(i) Mcjannett, in the matter of an application for an inquiry in relation to an election for offices in the Construction, Forestry, Mining and Energy Union, Western Australian Branch (No 2) [2009] FCA 1015 (10 September 2009);
(ii) Mcjannett v Reynolds [2009] WAIRC 00211; (2009) 89 WAIG 633;
(iii) Mcjannett v Reynolds [2009] WAIRC 01282; (2009) 89 WAIG 2395.
Answer
(a) The respondent in this application was the respondent in that application. This is not discovery.
(b) The secretary represented by lawyer Simon Millman and Peta Arnold.
(c) 26 August 2009 was the day, however, difficulties in gaining co-operation for the book inspection appeared in the weeks prior to 26 August 2009.
(d) Simon Millman of Slater & Gordon.
(e) Mr Millman refused to allow inspection of the joining applications for both unions, refused to allow inspection of the financial records for both unions and refused to allow a proper inspection of the membership roll for both unions.
(f) This charge is not to be reconciled with the facts relied upon in PRES 5 of 2009 other than the contributing evidence that a book inspection had been obstructed on 26 August 2009.
(g) This charge cannot be reconciled with those matters as they were not matters before the Full Bench and the issue of obstruction of the book inspection was not sent to trial.
Relationship (applicant's submission)
(14) Charge 14 – Multiple breaches of r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (21) – During the election period in 2009 the president, Cam McCulloch, authorised the sending of multiple election material containing negative falsehoods about the applicant to all the members which amounted to slander and possible breaches of the Defamation Act 2005 (WA). This is also a possible offence against the Electoral Act 1907 (WA) and constitutes an abuse of office by the president.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) the negative falsehoods;
(b) the 'slander' and possible 'breaches' of the Defamation Act;
(c) the possible offence against the Electoral Act;
(d) the alleged abuse of office by the president;
(e) the identity of the election material (or 14(e) can be satisfied by attaching a copy to the answer to this request);
(f) how it is said that this charge amounts to a breach of the respondent's rules, or otherwise arises for determination under s 66 of the Act; and
(g) how this charge can be reconciled with the outcomes in:
(i) Mcjannett, in the matter of an application/or an inquiry in relation to an election/or offices in the Construction, Forestry, Mining and Energy Union, Western Australian Branch (No 2) [2009] FCA 1015 (10 September 2009);
(ii) Mcjannett v Reynolds [2009] WAIRC 00211; (2009) 89 WAIG 633;
(iii) Mcjannett v Reynolds [2009] WAIRC 01282; (2009) 89 WAIG 2395.
Answer
(a) The negative falsehoods were that the applicant:
(i) Was a serial candidate for all types of elections. (The applicant has stood in government and union elections which is a far cry short of 'all types of elections'.)
(ii) Had stood in elections for the National Party in Queensland. (The applicant has never stood for an election or pre-selection for the National Party – this is a blatant lie.)
(iii) Another wise man from the east. (The applicant is from Perth and has never lived in an eastern suburb of Perth either.)
(b) The slander and possible breaches of the Defamation Act were:
(i) 'A serial candidate for all types of elections'.
(ii) 'He's just another wise man from the East who thinks he knows better than West Aussies'.
(iii) 'He is known for famously polling only 15 votes in a Queensland State government by-election'. (There is nothing famous about it – in fact the president would have had to search long and hard to find the monorail advertising stunt in a field of 15 candidates. My recollection is eight votes so in their haste to slander me they apparently could not even get the figure correct.) In another Queensland State election the applicant polled 19% of the primary vote against a senior cabinet minister.
(c) The possible offence is actually against the Criminal Code. Section 99(2) and (4) with a penalty of 12 months prison and $12,000 fine.
(d) The abuse of office is clear. The president used his power and position to slander the applicant on an election flyer for the respondent's election.
(e) The election material is an A3 size colour poster printed both sides and opposes the applicant and Mr Peter Bruce the only two non-incumbent candidates in the election. The flyer which was mailed to over 10,000 members would obviously be held in the union records. The applicant does not have an A3 printer and this is not discovery.
(f) It is clearly against the objects of the union to use an incumbent position of office to slander another union member. It is not in the realms of democracy for an incumbent official to use his position to publish lies about a non-incumbent union member. The flyer was paid for out of union members' funds in contravention to the Act.
(g) This charge cannot be reconciled by those matters as they did not proceed to trial.
Relationship (applicant's submission) – The actions of the president during the election period were in contravention to the objects of the union r 3.
(15) Charge 15 – Multiple breaches of r 11(1) and r 35(1)(h) – The secretary and assistant secretary ordered multiple levies upon the members during the period 2001 to 2011 and the union did not advertise the purpose or ratify the levies in accordance with r 11(1) and therefore did not have the power to do it. The cash collected was then siphoned off and largely used for purposes other than that which was stated at the time of imposition of the levies. This is an oppression against the members which also amounts to multiple breaches of r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (21) and possible offences against the Criminal Code and Crimes Act 1914 (Cth).
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for the:
(a) levies ordered, including dates and amounts;
(b) manner in which the cash collected was 'siphoned off';
(c) 'purposes' for which the cash was used;
(d) purpose for which the cash was stated to be used for each levy;
(e) alleged offence committed against the Criminal Code; and
(f) alleged offence committed against the Crimes Act.
Answer
(a) The levies ordered were always $20 per week per member. Numerous levies on numerous dates since 2001, including, but not confined to, repeated levies to assist legal action associated with the Cole Royal Commission, repeated levies claimed to be to assist legal action being taken against the assistant secretary, and a nationwide levy claimed to be to assist in legal action being taken against the 107 members charged under the BCII Act for an illegal strike on the Perth to Mandurah railway project.
(b) Cash was simply pocketed by officials and in most cases accountability was refused or denied.
(c) To fund opulent lifestyles for union officials.
(d) As stated at (a) above and paragraph 11 above.
(e) No alleged offence has yet been made. The charge relates to possible offences. There needs to be a thorough audit of the union and officials financial dealings after which there would most likely be alleged offences, criminal charges and prosecutions.
(f) Refer to (e) above.
(16) Charge 16 – Multiple breaches of r 35(1)(a), (g), (h), (i), r 12, r 14(2) and r 15 – Since 2001, the executive did not seek authorisation from general meetings to take the control of money derived from levies and donations away from the trustees. The union failed to keep proper accounts and submit same to the auditors in relation to levies, donations and bribes. The officers of the union failed to provide the auditor with all the books and documents relating to levies, donations, blackmail payments and bribes amounting to an enormous breach of trust to the members and possible criminal offences. This action also amounts to multiple breaches of r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (24).
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for the:
(a) rule that requires the executive to seek authorisation from general meetings;
(b) authorisation that was required to be sought under the rule;
(c) identity of the accounts referred to;
(d) shortcomings in the existing accounts, and the nature of the accounts the union should have kept;
(e) officers of the union alleged to have committed the alleged breaches;
(f) books and documents relating to the levies;
(g) alleged:
(i) levies;
(ii) donations;
(iii) 'blackmail payments'; and
(iv) 'bribes';
(h) alleged breaches of trust; and
(i) alleged criminal offences committed.
Answer
(a) Rule 12.
(b) To take control of money derived from levies and donations away from the trustees as stated in the charge.
(c) 'Accounts' being receipts issued to shop stewards and other collectors, pay in books accounting for money paid into the union bank accounts or office depository, and proper tallies of the levies and donations sent to the auditors.
(d) The accounts described above to not exist for the majority of money collected.
(e) Mark Hudston and a list of junior officials that will be corroborated by witness testimony at trial.
(f) Refer to (c) above.
(g) (i) Refer to 11(c) above.
(ii) Some levy payments were described as donations and/or casual tickets.
(iii) There are known blackmail payments made to the union. The largest known alleged payment is for the amount of $150,000 paid to the union training centre by a major construction company after they were set up in a tape recording sting by the secretary.
(iv) There are a number of known bribe attempts carried out by officials of the union. These are documented in newspaper reports and corroborated by a number of high profile business persons and mentioned in the Cole Royal Commission.
(h) Obvious gross breaches of trust to the non-official members of the union who would expect accountability of their hard earned funds collected by officials.
(i) Stealing, fraud and misrepresentation to gain a benefit are all breaches of the Criminal Code.
Relationship (applicant's submission) – Collecting levies with the clear premeditated intention to misappropriate the funds and excluding the trustees from the accountability is an enormous breach of r 3, r 35, r 12, r 14 and r 15 of the respondent and BLPPU and r 2 and r 36 of the CMETSWU.
(17) Charge 17 – Breach of r 3(20) and contraventions of the Oaths, Affidavits and Statutory Declarations Act 2005 – The secretary forged a record of a member of the respondent in order to gain transitional registration of the union with Fair Work Australia. This also amounts to a breach of r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (21) by bringing the union into disrepute.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for the:
(a) forgery;
(b) contraventions of the Oaths, Affidavits and Statutory Declarations Act 2005 (WA);
(c) date the action allegedly occurred;
(d) member who allegedly had his signature forged;
(e) nature and identity of the forged record (or 17(e) can be satisfied by attaching a copy to the answer to this request); and
(f) way in which the union was brought into disrepute.
Answer
(a) The secretary substituted an enrolment record from the federal union for an enrolment record of the respondent knowing that there were no bona fide enrolled members in the respondent.
(b) The secretary swore a statutory declaration that the record belonged to a member of the respondent when he knew it did not. The breach is obvious.
(c) On 11 March 2008, just prior to the 2008 election period as stated numerous times in past actions in this Commission and not yet taken to trial.
(d) There is no allegation of a forged signature – the record used in the exhibit attached to the said statutory declaration called 'KNR 1' is clearly not a record of a member of the respondent, but a record of a member of the CFMEU Construction and General Division, Western Australian Divisional Branch which is a different union registered in a different jurisdiction.
(e) Refer to (d) above and the federal union's own records.
(f) Redacted – the union is in danger of being brought into disrepute when the public find out about the false declaration filed with Fair Work Australia.
Relationship (applicant's submission) – The above matter is clearly in breach of the objects of the unions r 3 in the respondent and BLPPU and r 2 in the CMETSWU.
(18) Charge 18 – Multiple breaches of r 3(23) and r 10(1), (2), (3) and (6) – The union executive instructed officials not to collect entrance fees from thousands of members since 2001. This is a requirement under both state and federal rules. Specifically, r 8 of the national rules exposing the union to maladministration and its members to be ineligible to nominate for elections and forego their rights to any privileges of bona fide members. This is a massive breach of trust by the executive in direct conflict with the interests of the members and also amounts to breaches of r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (21).
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for the:
(a) alleged instruction – including what it was, when it was given and to whom it was given;
(b) circumstances in which the alleged instruction was carried out, if at all;
(c) alleged maladministration;
(d) manner in which it is said 'r 8 of the national rules' applies to an application under s 66 of the Act;
(e) way in which members became 'ineligible to nominate for elections and forego their rights to any privileges of bona fide members';
(f) identity of any such members who became ineligible to nominate as a result of such an instruction; and
(g) manner in which this allegation is in breach of trust and in direct conflict with members' interests.
Answer
(a) The instruction was given by the secretary as a standing order to all or most officials in the field. The instruction was given sometime around 2004 but cannot be exactly determined whilst the union continue to refuse a book inspection.
(b) Whilst signing up new members, transferring members from interstate and bringing previous delinquent members' accounts up to date.
(c) The maladministration is clear. The rules stipulate joining fees must be paid before a member is determined to be a financial member.
(d) Due to the decision in PRES 3-6 of 2008 and the testimony of the secretary in that matter, what is done in the name of the state union is also done in the name of the national union and vice versa.
(e) Rule 10(1), (2) and (3) of the respondent, BLPPU and r 8 of the national union are clear on the question of joining fees. Until the joining fee is paid and the secretary signs off on it the person is not deemed to be a member.
(f) Every member for which the union cannot produce a record of a paid joining fee signed off by the secretary on their application in the approved form 'schedule' to the rules.
(g) It is obviously a breach of trust and direct conflict to members' interests to waive a joining fee to members which then places them in a compromised position if at any given time the union officials felt they wanted to remove their eligibility and benefits of membership or right to nominate in an election or moreover challenge the result of an election ballot after an incumbent is defeated by a rank and file member on the basis that he or she had not paid a joining fee.
Relationship (applicant's submission) – Not collecting entrance fees in conflict to members' interests is an obvious breach of the objects of the union r 3 and r 10.
(19) Charge 19 – Multiple breaches of r 3(1), (2), (3), (24) and (26) and r 35(1)(c), (g) and (i) – The assistant secretary knowingly and repeatedly committed criminal offences of assault and trespass since 2001 mostly whilst not being in possession of a right of entry and then sought payment of the ensuing legal costs and fines from members' funds. The executive committed multiple breaches of the union rules by authorising the behaviour of the assistant secretary and repeatedly authorising the payment of the enormous costs incurred by the repeated unlawful behaviour from members' funds. This is a gross departure of trust and accountability to the members.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) how it is alleged that the assistant secretary was acting under the respondent's rules at the times alleged;
(b) the conduct which allegedly constitutes criminal assault since 2001;
(c) the conduct which allegedly constitutes criminal trespass since 2001;
(d) the manner in which the assistant secretary sought payment of the ensuing legal costs and fines from members' funds;
(e) the members' funds utilised;
(f) the manner in which the 'behaviour' was authorised by the executive;
(g) the 'gross departure of trust' referred to; and
(h) any rule which prevents the respondent from funding an official's criminal prosecution attracted while acting as an officer or employee of the respondent.
Answer
(a) The assistant secretary was acting in his capacity of assistant secretary of both unions. What is done in the name of the federal union is also done in the name of the state union and vice versa.
(b) The same conduct for which he has been charged and prosecuted numerous times: see criminal record as adduced in APPL 31 of 2011.
(c) See (b) above
(d) By pleading to the executive to authorise payment from the union funds and by arranging and participating in the collection of levies from the members.
(e) Payments to Slater & Gordon out of union funds.
(f) The executive failed to curtail the behaviour which itself is a failure of their fiduciary duty toward the union and its members.
(g) The members place their trust in the executive by electing them or moreover show their trust by not mounting election challenges against them. The failure of the executive to stop the behaviour is a gross departure of trust.
(h) Rule 3 and r 35. Also the penalties imposed against the assistant secretary and paid by the union were against the assistant secretary not against the union, therefore by adopting to pay the penalties and costs with members' funds was removing the deterrent placed upon the assistant secretary by the courts and can be said was encouraging recidivism by the assistant secretary.
Relationship (applicant's submission) – Criminal behaviour by an assistant secretary and in particular repeated criminal behaviour is clearly against the objects of the union r 3 and r 35.
(20) Charge 20 – Breach of r 3(13) – When the applicant was arrested in Bali on trumped up allegations of importing drugs the assistant secretary told the national news media the union would not assist him. The assistant secretary went on to slander the applicant and told the media he was a pest because he took the union to court and accused the union administration of being corrupt. The applicant mounted a defence without any assistance from the union executive and with privately arranged support from the union rank and file defeated the drug importation charges.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) the applicant's arrest, including date, charge and any plea or conviction;
(b) details of any time spent in custody;
(c) the applicant's trip to Bali, including whether the travel was work related;
(d) how long the applicant remained in Bali;
(e) whether the applicant continued to make membership subscription payments in this time;
(f) the national news media that is referred to (or 20(e) can be satisfied by attaching a copy to the answer to this request);
(g) the alleged slander; and
(h) what is alleged to have been told to the media by the assistant secretary.
Answer
(a) 28 December 2009. Charged and convicted under article 127 of the Indonesian Narcotics Code 2009. Possession of 1.7 gram of a group 1 narcotic (cannabis) which was planted in the applicant's luggage in a large metal container that set off bomb detectors in the airport x-ray equipment.
(b) Five months in custody as well known by the respondent.
(c) It was a holiday during the Christmas recess as well known by the respondent.
(d) Five months as well known by the respondent.
(e) Not possible from Bali jail as well known by the respondent, however the applicant was a paid up financial member as at 28 December 2009 until 30 March 2010 as well known by the respondent.
(f) WA Today website 6 January by Chris Thomson; on 5 January 2010, at http://www.shaman-australis.com/forum/index.php?showtopic=23366 by Chiral; The Australian newspaper 30 December 2009 by Debbie Guest.
(g) 'I'm glad he didn't get his hands on the union funds' and 'he was a nuisance'.
(h) 'The union is not going to help' and 'it's not a union matter'.
Relationship (applicant's submission) – The clear refusal of the assistant secretary to help a member in need of assistance is a forthright breach of r 3(13)
(21) Charge 21 – Breach of r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (21) – In or about September 2010, whilst the applicant was employed at the Collgar Wind Farm construction site, union official Mark Hudston acting either for the executive or by his own volition delivered a negative newspaper article about the applicant to Mr Tony Grieve, the site manager for Vestas Pty Ltd at Collgar Wind Farm, with intent by the union to have a negative effect upon the applicant in his workplace.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) the negative newspaper article that is referred to (or 21(a) can be satisfied by attaching a copy to the answer to this request);
(b) the manner and circumstances of delivery of the article to Mr Grieve;
(c) the conduct of Mr Hudston which permits the applicant to allege Mr Hudston was acting for the executive or otherwise;
(d) the intended negative effect upon the applicant in his workplace; and
(e) whether any negative effect was suffered by the applicant.
Answer
(a) To be divulged during the testimony of witness K1 during testimony at the trial of this matter.
(b) In person with the intent to damage the reputation of the applicant.
(c) The applicant did not allege this.
(d) See (b) above.
(e) The actions by Mark Hudston led to an email exchange between Vestas Pty Ltd and CCIWA which in turn led to a defamation action against CCIWA by the applicant.
Relationship (applicant's submission) – The actions of Mark Hudston are a clear breach of the objects of the union which should be defending and protecting its members not victimising and slandering them. Rule 3.
(22) Charge 22 – Breach of r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (21) – During the period September 2010 to 6 December 2010 union official Mark Hudston repeatedly refused to accept payment of the applicant's due subscription citing he had been instructed by the executive not to accept it. When the applicant contacted the union by phone he was told he had to apply to the executive to retain his membership. When the applicant requested to know the grounds, his request was refused. The applicant then paid his dues directly into the union bank account and emailed the union with a demand for a receipt. This was an unlawful oppression and serious breach of the union rules and abuse of office.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) the refusals by Mark Hudston, including dates and content of conversations;
(b) the contacts to the union by phone, including dates, identities of persons spoken to at the union and the content of conversations;
(c) the date of the payment of dues;
(d) the email of the demand for a receipt;
(e) way in which the allegation is 'an unlawful oppression';
(f) the detriment suffered by the alleged unlawful oppression;
(g) the way in which the allegation is a 'serious breach of the union rules'; and
(h) the way in which the allegation is an 'abuse of office'.
Answer
(a) On 24 November 2010, and another occasion before this, Mark Hudston visited the site at Collgar Wind Farm and refused to accept a cash payment of over $600 from the applicant. He claimed at first he did not have a receipt book. When pressed he then claimed the executive would not allow him to accept money from the applicant.
(b) On 24 November 2010, after the refusal by Mark Hudston, the applicant telephoned the union office and attempted to pay his dues by credit card. The duty consultant hesitated and placed the call on hold. After a few minutes the duty consultant returned and stated the applicant had to apply to the executive to retain his membership. The applicant asked for the grounds of this claim and the consultant terminated the call.
(c) The date of payment is in the applicant's banking archives not held at his premises. The union clearly has the record of the date of payment just prior to 6 December 2010.
(d) The email is stored on a backup hard drive not held at the applicant's premises. If the respondent cannot locate the email in its own records the applicant will produce the email at the trial of this matter.
(e) What allegation? The act of refusing the applicant's payment of dues without clear or proper grounds and without prior notification was an unlawful oppression.
(f) Undue stress, hurt to his feelings and embarrassment.
(g) The rules clearly state written notification must be given to a member if there are allegations of misconduct. The union did not do this during the period 30 March 2010 when his subscription fell due and 5 December 2010 after his subscription was accepted. Instead, the union chose to conduct an unlawful campaign of victimisation against the applicant during this period.
(h) The conduct of the executive or the secretary or assistant secretary alone or in unison is clearly an abuse of office.
Relationship (applicant's submission) – The act of victimising the applicant is a clear departure from the objects of the union r 3 and the procedure for dealing with alleged misconduct r 35.
(23) Charge 23 – Breach of r 35(2)(d) and r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (21) and abuse of office – During the week following 6 December 2010, whilst still employed at the Collgar Wind Farm, the applicant received both a receipt for his payment of dues and two threatening letters from the president containing a series of vexatious allegations directed at the applicant that were general in nature and not particularised. The letters were advising the applicant that he was going to be expelled from the union for misconduct. The applicant wrote back to the president by way of facsimile and registered mail requesting particulars of his defamatory allegations in the letters dated 6 December 2010. The president ignored the request and ceased communication. As a result, the applicant has been seriously defamed to the union executive and other officials and experienced undue stress. This is a serious abuse of office and the third documented unlawful attack upon the applicant in his workplace by this union since 2006 and the fourth documented attack upon the applicant in his workplace by the broader national union since 2000.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) the threatening letters that are referred to (or 23(a) can be satisfied by attaching a copy to the answer to this request);
(b) the vexatious allegations;
(c) the applicant's facsimile and letter that is referred to (or 23(c) can be satisfied by attaching a copy to the answer to this request);
(d) the 'defamatory allegations';
(e) how the allegations were published so as to amount to defamation;
(f) the way in which the president ignored the request;
(g) the undue stress experienced by the applicant;
(h) the alleged abuse of office; and
(i) how charge 23 is said to amount to a breach of the respondent's rules.
Answer
(a) Two identical letters written by the president each on a different letterhead from the federal union and state union respectively and both dated 6 December 2010 and both put before this Commission in previous matters without going to trial. The respondent clearly has the letters in their own records.
(b) The applicant was 'found guilty of drug importation' and 'at the time charges were laid the applicant also falsely knowingly and deliberately alleged that this union and or its officials was involved in or responsible for the importation' and 'the applicants ongoing gross misbehaviour'.
(c) A request for further and better particulars was sent by facsimile and registered post to the president on 20 December 2010. The president has never responded to the request.
(d) Refer to (b) above.
(e) The allegations were sent on two official letterheads from the union office requiring union staff to articulate the letters. It is clearly obvious the letters would have been perused by the union executive also before they were sent to the applicant.
(f) Refer to (c) above.
(g) The applicant experienced hurt to his feelings, stress in relation to the allegations and threats of expulsion from the union and stress due to the false nature of the allegations levelled at him by the president.
(h) It is an abuse of office for the president to take it upon himself to make such false allegations on official union letterheads when in fact the rules state it is the secretaries' responsibility to take such actions in which case the allegations would still need to be true not false as they were.
(i) Refer to (h) above.
Relationship (applicant's submission) – The act of sending out two separate letters from two different unions both containing the same false allegations and slander and both quoting a rule of the respondent that is going to be used to expel the applicant is a clear departure from the objects of the union r 3 and misconduct by the writer r 35 and an abuse of office.
(24) Charge 24 – Discontinued.
(25) Charge 25 – Breach of r 3(1), (2), (3), (5), (6), (11), (12), (13), (15), (21) and r 35(1)(a), (g) and (i) – The secretary instructed his son, Rod Reynolds, the union claims officer, not to progress a wage claim for the stepson of the applicant, Joshua Daley, a union member. This action is clearly another attack upon the applicant and a huge abuse of office.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) the employment of Joshua Daley;
(b) the wage claim;
(c) when did the secretary provide the alleged instructions to Rod Reynolds;
(d) the nature of the instruction;
(e) in what way was the alleged conduct an attack on the applicant;
(f) in what way was the alleged conduct a 'huge abuse of office'; and
(g) how charge 25 amounts to a breach of a specific rule.
Answer
(a) Employed by Catcon Pty Ltd as a rigger at the Collgar Wind Farm project as detailed in his wage claim held at the union office.
(b) Details are clearly on file at the union office. Mr Daley will adduce those to the court at the trial of this matter.
(c) As alleged by Mark Hudston to the applicant and Mr Daley details of which will be adduced to the court at the trial of this matter.
(d) As stated in the charge.
(e) Clearly the respondent knew Mr Daley was the applicant's stepson. As Mr Daley had not had any prior issue with the union before he was blacklisted it is clear the union was conducting a campaign of reverse nepotism against the applicant.
(f) Obviously the use of the union entity and/or its staff to victimise a member is an abuse of office.
(g) The instruction by the secretary and refusal of his son to progress a bona fide wage claim which was given in its correct form and copies retained by Mr Daley is a clear breach of the rules, specifically r 3 and r 35.
Relationship (applicant's submission) – Refer to (g) above.
(26) Charge 26 – Multiple breaches of r 3(22) and r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (21) – The secretary siphoned levies, blackmail payments, bribes and other revenue from small private enterprises from the union cash stream to acquire a massive personal portfolio of property, real estate and assets. Rule 3(22) does not allow the secretary to become the owner of the 'personal property' mentioned in the rule.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for the:
(a) alleged:
(i) levies;
(ii) blackmail payments;
(iii) bribes; and
(iv) other revenue;
the union secretary is alleged to have siphoned (including dates, details of the amounts involved and the nature of the transactions and 'siphoning');
(b) small private enterprises;
(c) details of the 'massive personal portfolio'; and
(d) manner in which (it is said that) the secretary has become the owner of union property.
Answer
(a) (i) Refer to 11, 15 and 16 above.
(ii)(iii) The applicant has two recordings of a sting operation which amounted to an extortion bid against a large construction company for $150,000 which it then paid into the union training centre. The first tape is of the sting operation set up by the secretary and carried out by officials and a site delegate at his instruction.
The second tape is of a former union official blowing the whistle to the Australian Taxation Office on the $150,000 extortion payment and other cash payments made to union officials at the union office.
The tapes have been digitally enhanced in a laboratory to make the voices more clear and transferred onto computer format for use in court proceedings. The tapes are stored in a safe location outside of Perth. The originals are stored in a separate location and will be handed over to the court and/or police.
The Cole Royal Commission also identified similar behaviour by officials from this union.
(iv) Refer to 11, 15 and 16 above also 26(a)(ii) and (iii) above. A conservative estimate of missing levy and other funds since 1994 is at between $5 million and $15 million depending how the mathematical formula is applied. Until the union allow a proper book inspection this figure is not ascertainable.
The nature of the alleged siphoning is wide ranging from secretary and executive approved junkets to outright theft of cash and donations.
(b) Refer to 11(d) above.
(c) A wide ranging portfolio including a hotel, a penthouse apartment at Raffles, a property at Leeming, an alleged property at Broome including a large boat, other smaller properties around Perth, a business in Bali called Bamboo Bar & Grill, alleged enterprises in Ireland and Canada and an expensive luxury Range Rover and the union training centre.
(d) By using his power and position to obtain such property.
Relationship (applicant's submission) – The use of the union entity to advance a person's personal wealth and position is clearly in breach of the objects r 3.
(27) Charge 27 – Multiple breaches of r 12, r 14(2), r 15, r 35(1)(a), (g), (h), (i) and r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (21) – The executive of the union approved and encouraged under the counter weekly cash payments to numerous officials of the union for an extended period colloquially known as the 'funny money' among officials. This unlawful action also constitutes federal offences under taxation law. This is a serious breach of trust and propriety against the members of the union.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) how under the counter weekly cash payments were encouraged and made;
(b) who encouraged and made the payments;
(c) the cash payments or 'funny money' paid to numerous officials;
(d) the 'numerous officials';
(e) the timeframe of the payments;
(f) the alleged offences under taxation law; and
(g) the alleged breach of trust.
Answer
(a) By allocating untaxed weekly cash payments to union officials given in an envelope attached to their normal pay slip the latter being transferred directly into their bank accounts as their normal pay.
(b) The secretary directing the office manager to prepare the payments.
(c) The funny money payments including the names of recipients are detailed in an Australian Taxation Office investigation tape which has been transferred to DVD format for use in court proceedings and stored in a safe location.
(d) Will be named at the trial of this matter.
(e) Beginning around 1995 and continuing to an unknown date possibly 2012.
(f) The action of making under the counter cash payments by a union to employees of the union is a clear breach of taxation law.
(g) The breach of trust to the members is clear and obvious.
Relationship (applicant's submission) – Clear and concise breaches of r 3, r 12, r 14, r 15 and r 35 of the CFMEUW and BLPPU and r 2 and r 36 of the CMETSWU.
(28) Charge 28 – Multiple breaches of r 35(1)(a), (g), (h), (i) and r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (21) – The secretary of the union arranged a large cash payment to the union training centre of $150,000 through the use of covert surveillance, entrapment and subsequent blackmail. The secretary encouraged other members to engage in this activity also. This is a massive breach of the union rules and could also constitute offences under the Criminal Code and federal Crimes Act.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) whether it is alleged the secretary was acting alone or on behalf of the union (or otherwise) when making the alleged payment;
(b) the large cash payment arranged, including the date, transaction, parties involved and purpose of the transaction;
(c) the covert surveillance;
(d) the alleged entrapment;
(e) the alleged subsequent blackmail;
(f) the manner in which the secretary 'encouraged' the conduct of others;
(g) the identity of the 'other members' encouraged by the secretary and the nature of their involvement;
(h) the alleged breach of union rules;
(i) the alleged offences under the Criminal Code; and
(j) the alleged offences under the federal Crimes Act.
Answer
(a) It is not clear if the secretary was acting alone for his own benefit or for the financial gain of the union. In either case the behaviour is totally out of hand. Further investigations may reveal these facts.
(b) $150,000 in 1997 paid by cheque signed by a company accountant named in the Australian Taxation Office investigation and made out to the union training centre but reported as a $100,000 payment in the Cole Royal Commission.
(c) The covert surveillance was arranged by the secretary for the purpose of getting a company official into a compromised position which could then be used to extort money from the company.
(d) Occurred at the HBI project in Port Hedland in 1997.
(e) The secretary then blackmailed the company with threats of exposing the company official for his role in setting up a violent attack upon a construction worker by demanding a large cash payment.
(f) The secretary used enticements to encourage a site delegate to carry a tape recorder by falsely telling him it was for the purpose of protecting his own position on site which was under threat. The secretary instructed union official Bob Wade to deliver the tape recorder and instructions to the site delegate.
(g) The site delegate is witness K2 and the company official is witness J3. The nature of their involvement is already described above.
(h) Breaches of r 3 and r 35 of the CFMEUW and BLPPU and r 2 of the CMETSWU.
(i) Offences relating to extortion, blackmail and attempts to pervert the course of justice.
(j) refer to (i) above.
Relationship (applicant's submission) – See (h) above.
(29) Charge 29 – Breach of r 35(1)(a), (g), (h), (i) and r 12 – The secretary and assistant secretary attempted to bribe a candidate to withdraw his union election nomination and move to the Philippines by offering an unlimited full time wage and airfares abroad. No authorisation was sought from the members for the funding of this activity and bribe. This is a gross breach of trust and impropriety and contravention of the union rules.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for the:
(a) candidate; and
(b) attempted bribe, including the dates, places and content of conversations.
Answer
(a) Terry McParland.
(b) On 28 September 2000, in Kings Park, Perth, the assistant secretary was recorded offering a bribe to election candidate Terry McParland to withdraw from the election. The assistant secretary offered Mr McParland a full time wage and airfares to go and live in the Philippines. The tape has been digitally enhanced and transferred to DVD format for use in court proceedings. The DVDs and original tapes are stored in a safe location outside of Perth.
Relationship (applicant's submission) – The bribe attempt is an abhorrent departure from the objects of the union and clear misconduct on the part of the assistant secretary reportedly acting on behalf of the secretary who was facing the election challenge. Contravention of the objects of the union's r 3 and r 35 of the CFMEUW and BLPPU and r 2 of the CMETSWU.
(30) Charge 30 – Breach of r 35(1)(a), (g), (i) and r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (21) – The secretary and assistant secretary and former official Bob Wade conspired to have a union member assaulted in his workplace by a hired thug. During this activity other union members were encouraged to take part by union officials. This is a massive breach of trust, abuse of office and contravention of the rules. It could also constitute criminal offences under the Criminal Code or the federal Crimes Act.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for the:
(a) assault, including the date, place and its nature;
(b) union member assaulted;
(c) alleged conspiracy;
(d) 'hired thug';
(e) other union members encouraged to take part;
(f) alleged contravention of the union rules;
(g) alleged offences under the Criminal Code; and
(h) alleged offences under the federal Crimes Act.
Answer – Refer to 28 above. The tapes are stored in a safe location outside of Perth. This charge will be litigated in conjunction with charge 28.
(31) Charge 31 – Breach of r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (21) – The secretary used his position to arrange a consultancy contract with his longtime friend, disgraced former premier Brian Bourke [sic] at great expense to the members and in doing so brought the union into disrepute. This is also an abuse of office.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for the:
(a) manner in which the secretary used his position;
(b) consultancy contract;
(c) expense to members;
(d) way in which the union was brought into disrepute;
(e) rule breached by entering into a consultancy contract; and
(f) alleged abuse of office.
Answer
(a) The secretary used his influence over the executive by having them tainted with payments of funny money and then using threats to get his own way with executive decisions.
(b) As widely reported in the news media. Not ascertainable until the union allow a proper book inspection.
(c) Obviously the hiring of an unnecessary consultant because he is a mate of the secretary is an unwarranted expense to the union and therefore the members.
(d) Brian Bourke [sic] was and remains in the news headlines for alleged criminal activity. The relationship between Bourke [sic] and the union has brought the union into disrepute. The public image of the union is widely renowned for thuggery and illegal activity.
(e) Rule 3. It is not in the objects of the union for a secretary to supply employment for a mate who has no prior experience working in a construction union.
(f) Clear abuse of office by the secretary.
Relationship (applicant's submission) – A clear departure from the objects of the union r 3 in the CFMEUW and BLPPU and r 2 in the CMETSWU.
(32) Charge 32 – Discontinued.
(33) Charge 33 – Discontinued.
(34) Charge 34 – Breach of r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (21) – The secretary resigned from the ALP in a brazen public display of animosity after his wife was expelled from the party again bringing the union into disrepute as it was widely publicized in the news media.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) the resignation;
(b) whether it is alleged the secretary was acting in his personal capacity, union capacity, or otherwise when he resigned;
(c) the 'brazen public display of animosity';
(d) the way in which the union was brought into disrepute; and
(e) how the resignation of a person in the circumstances from a political party relates to a breach of the CFMEUW rules.
Answer
(a) Occurred in 2007 shortly after the assistant secretary was expelled from the ALP.
(b) The secretary allegedly threatened the ALP executive with taking the union support with him. In that context the secretary was acting in his capacity as union secretary at the time.
(c) The secretary ensured the media were informed of his resignation in order to have the affair widely publicised on national television when it could have easily been done privately.
(d) The union was brought into disrepute through the brazen public display of animosity toward the ALP who are affiliated with trade unions and continues to do so with the recent attempts by the secretary and his wife to rejoin the ALP.
(e) As described in (d) above it amounts to a breach of the objects of the union. The secretary has always been a dictator and believes the union is his own entity to do as he pleases with.
Relationship (applicant's submission) – A clear and concise breach of the objects of the union r 3.
(35) Charge 35 – Multiple breaches of r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (21), r 35(1)(a)(i) and the Oaths, Affidavits and Statutory Declarations Act 2005 – The secretary on numerous occasions knowingly filed annual returns in the Commission with falsified membership quantities and deliberately avoided taking the legal steps to obtain a certificate under s 71 of the Act in order to hide and control enormous cash and assets with little to no accountability to the members. This is also an abuse of office.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) the annual returns;
(b) the knowledge of the secretary relating to the alleged falsifications;
(c) the 'falsified membership quantities', and what those 'quantities' should allegedly have been;
(d) the 'numerous occasions';
(e) the 'enormous cash and assets' alleged to be hidden;
(f) the alleged breaches of the Oaths, Affidavits and Statutory Declarations Act 2005;
(g) the alleged abuse of office; and
(h) how the allegations concerning the 'steps to obtain a certificate under s 71 of the Act' are reconciled with:
(i) the decision in The Construction Forestry Mining and Energy Union of Workers v (Not applicable) [2011] WAIRC 01174 (21 December 2011), and
(ii) the applicant's attempt to intervene in FBM 6 and 7 of 2009.
Answer
(a) The secretary filed annual returns for the BLPPU and CFMEUW with the Registrar of the Commission every year for the existence of these unions.
(b) On every occasion the secretary knew there were no members in the CFMEUW and all the members were in the federal union. The secretary was fully aware on these occasions what his obligations were in relation to a certificate under s 71 of the Act and under r 10 of the CFMEUW and BLPPU.
(c) The membership quantities were simplistically substituted with membership quantities from the federal union and should have in fact been zero or close to it as among other things, zero membership applications were produced during the book inspection carried out by the applicant. Evidence adduced in PRES 3-6 of 2008 also determined that subscriptions and joining applications were not taken from members in relation to the CFMEUW, but were in fact in relation to the federal union. All subscriptions were reported to be banked in a federal union bank account and not the account of the CFMEUW.
(d) On every occasion a return was filed with the Commission since the registration of the union in 2001 beginning in 2002.
(e) Property and shares portfolio including the union training centre estimated to be in excess of $26 million at the time of PRES 3-6 of 2008. Other alleged assets and property reported in the media and not ascertainable until the union allow a proper book inspection.
(f) On every occasion an annual return was filed with the Commission commencing with 2002 the statutory declaration was knowingly falsified in terms of the membership quantities of the CFMEUW.
(g) It is a clear abuse of office to manipulate the union membership and its assets in this way and in the way the secretary admitted to doing in his testimony during the proceedings of PRES 3-6 of 2008.
(h) (i) The repeated ignorance of his obligation under s 71 of the Act and r 3 are not deemed to be exonerated or reconciled by the decision pointed out by the respondent as that decision was not retrospective.
(ii) There can be no reconciliation form the applicant's attempts to intervene in FBM 6 and 7 of 2009 as those matters did not proceed to trial and no retrospective decision was made by the Full Bench.
Relationship (applicant's submission) – The actions of the secretary were clearly not in the interests of the union or its members as proved in PRES 3-6 of 2008 and a clear departure from the objects of the union r 3 and misconduct r 35.
(36) Charge 36 – Multiple breaches of r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (21) – The union has a recorded history of using the union resources against its own members, particularly for purging any member from the union who has voiced dissent or stood in an election against any incumbent official as the union did to the applicant in 2010 and to Kevin Aitkin and Terry McParland in 2002 which are just three examples of many. This is a serious departure from the ethics of democracy and the objects of the union. It may also constitute misconduct under r 35.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) the 'recorded history' of using the union resources against its own union members;
(b) the purging of the applicant, including the date and circumstances;
(c) the purging of Kevin Aitkin and Terry McParland, including the date and circumstances;
(d) how the allegation of 'purging' of Terry McParland in 2002 is reconciled with the decision in McParland v The Construction, Forestry, Mining and Energy Union of Workers [2002] WAIRC 06935 (12 September 2002);
(e) any members 'purged' for 'dissent' or standing in an election including their names, and details of the purging; and
(f) the alleged misconduct under r 35.
Answer
(a) In every application brought before the Commission by members against the union since 2001 the union has engaged expensive outside lawyers at great expense and ambiguity to the members. The union did this despite already directly employing paid lawyers.
(b) Refer to 23 above.
(c) Kevin Aitkin was purged from the union shortly after the 2000 general election in retaliation for supporting the election bid of Terry McParland. This was widely reported in the media. Terry McParland was unfairly purged from the union following his election bid during the 2000 general election.
(d) It is not reconciled with the decision in PRES 30 of 2002 as that decision was incorrect and should have been taken to the court of administrative appeal. The union used its power and financial position to gain an advantage over Mr McParland.
(e) Terry McParland, Kevin Aitkin, and attempts to purge Darren Kavanagh, Wayne Wildes, Doug Heath, Kevin Ennor, and the applicant.
(f) If it is proved the union purged these members in retaliation for dissent or standing in elections then there are clear breaches of r 35 for misconduct against the officials responsible for the victimisations.
Relationship (applicant's submission) – The act of victimising members of the union by the union is a clear departure from the objects r 3.
(37) Charge 37 – Breach of r 3(1) through (26) and r 35 – In paragraphs 15, 17 and 19 of volume 1 of the summary of findings handed down in the Cole Royal Commission in February 2003 it is stated that the union is engaging in conduct of the nature complained about in these proceedings including but not confined to:
(a) Disregard for the rule of law.
(b) Blackmail.
(c) Disguising of payments of money.
(d) Inadequate accounting procedures.
(e) Using industrial power to raise money for the unions own purposes.
(f) Disregard of lawful court orders by the union.
(g) Attempts to regulate the industry.
These are also some of the actions complained of by the applicant which took place post 2005 showing the union officials still think they own the industry and everyone working in it. This is a serious departure from the objects and ethics of unionism and its rules.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) the 'actions complained of by the applicant which took place post 2005 showing the union officials still think they own the industry and everyone working in it';
(b) how such actions relate to a breach of the rules;
(c) where in the summary of findings handed down in the Cole Royal Commission in February 2003 is 'blackmail' mentioned, as alleged?;
(d) where in the summary of findings handed down in the Cole Royal Commission in February 2003 is the CFMEUW, a state registered organisation, the subject of adverse findings?
(e) what is the 'serious departure' from the objects and ethics of the union alleged.
Answer
(a) Arranging the summary dismissal of the applicant and blacklisting of himself and his stepson and the actions by the president during the 2008 election period and again in his attacks upon the applicant in December 2010 and the actions of official Brad Upton on 1 February 2012 in clearly threatening a large group of union members at Port Hedland with being blacklisted by the union and named and shamed in the union magazine if they accepted a caravan deal on offer by Worley Parsons and the continuing refusals of the union to keep proper accounts and issue receipts for levy money collected.
(b) These actions are clear breaches of the objects and conduct rules of the union.
(c) At 15(y), 17, 18 and 19.
(d) Due to the decision in PRES 3-6 of 2008 and evidence adduced by the secretary in that matter what is done in the name of the federal union is also done in the name of the state union and vice versa. Commissioner Cole did not expand on the differences between the two unions in his inquiries but moreover treated the two unions as one entity, however, the question again gives rise to the fact the union and its hired lawyers still want to have it (the question of separate jurisdiction) both ways at will.
(e) As charged breaches of r 3 and r 35.
Relationship (applicant's submission) – The summary of findings by Commissioner Cole point to a number of serious rule breaches by the union which have for the most part not abated since the Royal Commission.
(38) Charge 38 – Breach of r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (21) – The secretary and assistant secretary have a long documented history of threatening members and non-members in an angry violent fashion with the statement – 'you will never work in the industry again!' This is a serious breach of r 3 and an unlawful act on each occasion it took place. In recent years the union has been covertly using the ERMS blacklist to carry out these threats against its own members.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) the 'long documented history of threatening members and non-members in an angry violent fashion';
(b) the persons involved, together with the dates, places and times for each occasion the secretary and assistant secretary 'threatened members and non-members in an angry, violent fashion with the statement – you will never work in the industry again'; and
(c) manner in which the union has used the ERMS blacklist to carry out threats against its own members.
Answer
(a) The Perth based newspapers have numerous historical examples of these threats being levelled at workers by the secretary and assistant secretary. The assistant secretary made this threat in relation to the applicant in 2006 which was heard by a witness in the union office.
(b) As reported in Perth based newspapers and in October 2006 in the union office in front of witness D1 who will be testifying in the trial of this matter.
(c) By arranging for construction managers to blacken their periodic and termination reports sent to ERMS solutions about particular union members.
Relationship (applicant's submission) – The behaviour of the secretaries is abhorrent and clear breaches of r 3.
(39) Charge 39 – Breach of r 3(1), (2), (3), (5), (6), (11), (12), (13), (15) and (21) – In or about September 2011 the ABCC launched an action against the union in relation to the ERMS blacklist. The union failed to mount a forthright defence or any follow up appeal to the action again showing the union is complicit in the blacklisting of its own members. The union executive are clearly happy to wash their hands of the ERMS blacklist issue despite the applicant and numerous other members remaining on the unlawful ERMS blacklist and having serious economic damage wrought upon their families. This is a serious breach of the objects and ethics of the union and its rules.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) the action launched by the ABCC;
(b) the outcome of the ABCC's action;
(c) the ERMS blacklist;
(d) the defence that should have been mounted in respect of the proceedings;
(e) how it is said that 'the failure to mount a forthright defence' by the CFMEUW results in a breach of the CFMEUW rules;
(f) the 'serious economic damage' suffered as a result of the blacklist; and
(g) alleged serious breach of the objects and ethics of the union by reference to the rules.
Answer
(a) The action was to obtain a gag order to prevent the union from naming ERMS solutions and its subsidiary Bright People Technologies as a blacklist organisation.
(b) The union went along obligingly and the gag order was granted in the Federal Court.
(c) Is a well known blacklist organisation that has allegedly victimised hundreds and possibly thousands of members from several unions in the construction industry. The respondent has published facts about ERMS in its election propaganda and union magazine, however, this was only ever done reluctantly and under duress from the members as the union conveniently uses the blacklist to victimise dissident members.
(d) The union should have mounted a forthright defence to the proceedings including a national campaign of advertising and industrial action to expose and close down the unlawful blacklisting operation and the ABCC's collusion with it.
(f) A large number of highly skilled union members have suffered serious economic and collateral damage due to being locked out of the resources industry construction boom by the blacklist whilst errant employers continue to claim there is a skills shortage in the industry.
(g) The breaches of the objects of the union through the failure to mount a forthright and proper defence to the gag order is clear.
Relationship (applicant's submission) – Failure to defend members and the union itself from attack by ERMS solutions is clearly against the objects of the union r 3.
(40) Charge 40 – Discontinued.
(41) Charge 41 – Discontinued.
(42) Charge 42 – Discontinued.
(43) Charge 43 – Multiple breaches of r 3(1), (2), (3), (5), (6),(11), (12), (13), (15) and (21) and r 35(1)(a), (g), (h) and (i) – There are abundant documents available in the matter of APPL 31 of 2011 showing serious breaches of the union rules and the rule of law by the assistant secretary which has brought the union and its members into disrepute.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) the 'abundant documents' (or charge 43a can be satisfied by attaching a copy to the answer to this request);
(b) what, if any, matters are now raised that were not dealt with in APPL 31 of 2011;
(c) how charge 43 is able to be reconciled with the outcome in APPL 31 of 2011, including the applicant's unsuccessful attempt to intervene in the proceedings;
(d) the alleged serious breaches of the union rules;
(e) the alleged serious breaches of the rule of law by the assistant secretary; and
(f) the manner in which the union and its members have been brought into disrepute.
Answer
(a) The applicant does not have the file from APPL 31 of 2011 but the respondent does. The applicant has viewed the file at the registry. The respondent lawyers should refer to their own records. The applicant does, however, have a copy of the criminal record of Joseph McDonald for the period 23 February 1994 to 21 March 2011 inclusive. The record is extensive and appalling.
(b) The prima facie case of multiple rule breaches was not dealt with in APPL 31 of 2011.
(c) It cannot be reconciled through the outcome in APPL 31 of 2011 which itself was a further negative outcome for the assistant secretary who was refused the reissue of a right of entry permit.
(d) The criminal record alone is testament to a notorious offender who has total disregard for the rule of law let alone rules of his own union. Multiple breaches of r 3 and r 35 as charged.
(e) As recorded in his own criminal record from 1994 to 2011.
(f) The repeated and continuing unlawful behaviour of the assistant secretary has been widely publicised in the news media bringing the union and its members into disrepute by lowering public opinion of the union and its members.
Relationship (applicant's submission) –The behaviour of the assistant secretary as adduced in APPL 31 of 2011 define clear and multiple breaches of r 3 and r 35.
(44) Charge 44 – Multiple breaches of r 1 through to r 39 – Since registration of the CFMEUW in September 2001 the secretary and assistant secretary conspired to keep the truth about the state union and its assets away from the members and worked to dupe the members into thinking there was only ever one federal union that owned everything whilst they operated the entity as a benevolent society for a select few. This is a massive breach of trust by the officials and conducive to gross maladministration.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) the alleged conspiracy to keep the truth about the state union and its assets away from members;
(b) the alleged breach of trust by officials;
(c) any representation made by the secretary and assistant secretary to the effect that there was 'only ever 1 federal union that owned everything';
(d) how the secretary and assistant secretary 'operated the entity as a benevolent society for a select few';
(e) the particular rule relied on in the charge and the manner of breach; and
(f) how charge 44 is able to be reconciled with the evidence and findings in inter alia Thompson v Reynolds [2009] WAIRC 00024 (23 January 2009) including that the CFMEUW:
(i) held elections for offices every four years,
(ii) filed annual returns in the Commission, and
(iii) issued joint membership cards to members.
Answer
(a) By leaving off or removing all mention of the state union from printed material distributed to the members, including, but not limited to, all receipts for subscriptions, union tickets, advertising, posters, and the union magazine and by the secretary always signing himself as secretary of the federal union on all material distributed en mass [sic] to the membership.
By not clearly holding separate monthly meetings or keeping separate records and minutes of general meetings and executive meetings. By not obtaining separate joining applications for the CFMEUW as defined in the rules, but instead cleverly disguising the application underneath the heading on the federal union joining cards.
(b) The breach of trust relates to the duping of the membership into thinking that the two unions are in fact one single union and all the assets and funds were being controlled by one single entity. In corroboration of this the membership were clearly confused at the onset of two separate elections in 2008 causing the secretary to send out an explanation to the members at huge cost to the union.
(c) Refer to (a) and (b) above.
(d) By taking control of the funds away from the trustees and siphoning levies and other money out of the union coffers. By setting up other entities such as the Building Trades Association of Unions of Western Australia (Association of Workers) with small despotic rule books that allow for secret ballots and wages and payments to be made to members from union funds and business deals with private enterprises such as printers.
(e) The entire rule book as the whole nature of the entity has been corrupted.
(f) It is not able to be reconciled by the decision in PRES 3-6 of 2008.
Relationship (applicant's submission) – See 44(e) above.
(45) Charge 45 – Breach of r 3(1), (2), (3) and (13) and r 35(1)(a), (g) and (i) – On 23 March 2010, the assistant secretary addressed a large public rally in Perth and clearly blamed union members employed at the Pluto construction project for an unlawful strike. The Federal Court later found the assistant secretary guilty of inciting the unlawful strike and fined him and the union a large sum of money. This is serious misconduct by the assistant secretary.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for each of the following:
(a) manner in which union members were blamed;
(b) how charge 45 relates to a breach of any rule of the CFMEUW; and
(c) how this charge 45 is reconciled with the matters in issue in the following proceedings:
(i) Woodside Burrup Pty Ltd v Construction, Forestry, Mining & Energy Union [2011] FCA 949 (22 August 2011) which involved industrial action 1 and 2 December 2009 at the Pluto Project by the CFMEU (and not the CFMEUW), and
(ii) United Group Resources Pty Ltd v Calabro (No 5) (includes corrigendum dated 16 December 2011) [2011] FCA 1408 (8 December 2011) which involved industrial action in the period 22 to 30 January 2010 by employees on the Pluto Project (but not the CFMEU or CFMEUW).
Answer
(a) At this link http://www.youtube.com/watch?v=jIMM71QzuUQ is a video filmed on 23 March 2010 where at 7m30s the assistant secretary blames 2000 construction workers at Pluto for 'taking industrial action on their own without the union'. The assistant secretary was later blamed by the Federal Court for inciting the industrial action.
(b) Due to the decision in PRES 3-6 of 2008 and testimony in that matter by the secretary any action done in the name of the federal union is also done in the name of the state union and vice versa.
(c) The charge cannot be reconciled by these matters as the fact the assistant secretary blamed union members at a public rally on 23 March 2010 was not a matter being determined in these matters. Also see (b) above.
Relationship (applicant's submission) – The attempts by the assistant secretary to blame innocent union members for an illegal strike which he clearly incited is a gross breach of r 3 and r 35.
(46) Charge 46 – Breach of r 12 – The executive and or the trustees recently gave an expensive motor vehicle belonging to the union to the retiring secretary. Rule 12 does not allow union property and funds to be given away. The vehicle should have been either inherited by the incoming secretary or sold and the funds invested back into the union in accordance with r 12.
Request for further and better particulars – In respect of this charge specify the usual particulars of the charge, including the usual particulars for the:
(a) manner in which the trustees 'gave' an expensive motor vehicle away;
(b) records showing ownership of the motor vehicle;
(c) the basis upon which the applicant is able to assert that:
(i) the motor vehicle was gifted to the past secretary; and
(ii) the CFMEUW had previously owned the vehicle.
Answer
(a) It is not determined, nor is it alleged that the trustees alone gave the union asset away. There needs to be an inquiry to determine this fact.
(b) Obviously the applicant does not have access to those records until the union allow a proper book inspection.
(c) (i) It was widely publicised by the news media that the asset had been given to the secretary who himself disclosed the gift on a Perth radio station.
(ii) Due to the decision in PRES 3-6 of 2008 and the fact the union has now obtained a certificate under s 71 of the Act it is not relevant which union owned the vehicle. What is relevant is that neither union has a rule that allows an official to make off with union property at their alleged retirement.
Relationship (applicant's submission) – Giving away union assets to retiring officials is clearly in breach of r 12.
(47) Charge 47 – Discontinued.
Orders and remedy sought
(1) Order 1 – The executive members of the CFMEUW be immediately disqualified from ever holding office in the union.
Request for further and better particulars – In respect of this remedy sought, please provide the usual particulars of the following:
(a) to which charge above does this order specifically relate?; and
(b) which specific provision of the Act is relied upon to achieve this remedy?
Answer
(a) All charges that implicate the union executive and are proved at trial.
(b) Section 14 of the Act.
(2) Order 2 – Mark Hudston and Bob Wade be immediately disqualified from ever holding office in the union.
Request for further and better particulars – In respect of this remedy sought, please provide the usual particulars of the following:
(a) to which charge above does this order specifically relate; and
(b) which specific provision of the Act is relied upon to achieve this remedy?
Answer
(a) All charges where these officials are implicated and the charges proven at trial.
(b) Section 14 of the Act.
(3) Order 3 – The union be ordered to apologise to Joshua Daley for discrimination and to terminate the employment of Rod Reynolds for discriminating against Joshua Daley.
Request for further and better particulars – In respect of this remedy sought, please provide the usual particulars of the following:
(a) to which charge above does this order specifically relate?; and
(b) which specific provision of the Act is relied upon to achieve this remedy?
Answer
(a) Charges 2, 7, 8 and 25.
(b) Section 14 of the Act.
(4) Order 4 – The union be ordered to progress the wage claim of Joshua Daley v Catcon Pty Ltd without further delay.
Request for further and better particulars – In respect of this remedy sought, please provide the usual particulars of the following:
(a) to which charge above does this order specifically relate?; and
(b) which specific provision of the Act is relied upon to achieve this remedy?
Answer
(a) Charges 2, 7, 8 and 25.
(b) Section 14 of the Act.
(5) Order 5 – The assistant secretary be ordered at his own cost to publish a visible retraction and apology for the derogatory comments made to the news media against the applicant after his arrest in Bali in at least one statewide newspaper and one national newspaper broadsheet.
Request for further and better particulars – In respect of this remedy sought, please provide the usual particulars of the following:
(a) the 'derogatory comments' referred to, including date, where published, and the content of the comments;
(b) to which charge above does this order specifically relate?; and
(c) which specific provision of the Act is relied upon to achieve this remedy?
Answer
(a) Charge 20.
(b) Section 14 of the Act.
(6) Order 6 – The president be ordered to write to the members at his own cost retracting the falsehoods he published during the 2008/9 election ballot about the applicant standing in elections for the National party.
Request for further and better particulars – In respect of this remedy sought, please provide the usual particulars of the following:
(a) the 'falsehoods he published during the 2008/9 election ballot about the applicant';
(b) to which charge above does this order specifically relate?;
(c) which 'National party' is referred to; and
(d) which specific provision of the Act is relied upon to achieve this remedy?
Answer
(a) Refer to 14 above.
(b) Charge 14.
(c) Section 14 of the Act.
(7) Order 7 – The executive members and other officials be ordered to repay misappropriated funds to the union and pay tax on under the counter weekly cash payments received at the union office.
Request for further and better particulars – In respect of this remedy sought, please provide the usual particulars of the following:
(a) the 'misappropriated funds';
(b) the 'under the counter weekly cash payments';
(c) to which charge above does this order specifically relate?; and
(d) which specific provision of the Act is relied upon to achieve this Remedy?
Answer
(a) All stolen funds as particularised in this document and proven at the trial of this matter.
(b) As adduced in evidence by witness K2 in the Australian Taxation Office investigation and his future testimony at the trial of this matter.
(c) To all charges dealing with misappropriated funds.
(d) Section 14 of the Act.
(8) Order 8 – The secretary be ordered at his own cost to reinstate the membership of Mr Terry McParland and offer genuine reparation for the years of victimisation he instigated upon this person.
Request for further and better particulars – In respect of this remedy sought, please provide the usual particulars of the following:
(a) the 'victimisation' referred to;
(b) the standing of the applicant to see such a remedy;
(c) how this remedy is to be reconciled with the decision in McParland v The Construction, Forestry, Mining and Energy Union of Workers [2002] WAIRC 06935 (12 September 2002);
(d) to which charge above does this order specifically relate?; and
(e) which specific provision of the Act is relied upon to achieve this remedy?
Answer
(a) The premeditated expulsion from the union and the stated blacklisting from work in the industry.
(b) On behalf of a former victimised member who was wrongly expelled from the union and cannot afford legal representation.
(c) Cannot be reconciled by PRES 30 of 2002 because the decision was erroneous, the union used its resources and power against Mr McParland in an unfair manner and the matter should have gone to appeal.
(d) Charge 36
(e) Section 14 of the Act.
(9) Order 9 – The trustees be removed from the control of funds and assets belonging to the union.
Request for further and better particulars – In respect of this remedy sought, please provide the usual particulars of the following:
(a) to which charge above does this order specifically relate?; and
(b) which specific provision of the Act is relied upon to achieve this remedy?
Answer
(a) All charges relating to the misappropriation of funds as proved at the trial in this matter.
(b) Section 14 of the Act.
(10) Order 10 – The secretary be ordered to return the Range Rover to the property of the union.
Request for further and better particulars – In respect of this remedy sought, please provide the usual particulars of the following:
(a) to which charge above does this order specifically relate?; and
(b) which specific provision of the Act is relied upon to achieve this remedy?
Answer
(a) Charge 46
(b) Section 14 of the Act.
(11) Order 11 – The Commission deregister the CFMEUW under s 73 of the Act and order all assets, funds and liabilities to be transferred to the control of the members of the CFMEU Construction and General Division, Western Australian Divisional Branch including all reimbursements of misappropriated funds.
Request for further and better particulars – In respect of this remedy sought, please provide the usual particulars of the following:
(a) to which charge above does this order specifically relate?
(b) the standing of the applicant to seek an order under s 73 of the Act?
Answer
(a) All or any of the charges as proved at the trial of this matter.
(b) Under s 73(1) and s 14 of the Act the applicant can request the President make such an order.
Evidence on affidavit
9 In support of its application to dismiss the substantive application, the CFMEUW filed an affidavit of Shannon Nora Walker made on 30 April 2012. Ms Walker is employed by the CFMEUW and its counterpart federal body, the CFMEU Construction and General, WA Division (CFMEU Branch), as an in-house solicitor. She has held that position since 3 November 2009. Prior to being employed as a solicitor she was employed by the CFMEUW and the CFMEU Branch as an industrial officer from 8 July 2008.
10 Ms Walker, after examining the amended statement of particulars and answers to request for further and better particulars filed by the applicant, made inquiries into the following matters:
(a) When Kevin Noel Reynolds ceased to be secretary of the CFMEUW;
(b) When Timothy Kucera ceased to work as an in-house solicitor for the CFMEUW;
(c) When Robert 'Bob' Wade ceased to be employed by the CFMEUW;
(d) Whether a levy was placed on all CFMEUW members in accordance with r 11 of the CFMEUW rules in 2011; and
(e) Any correspondence received by the applicant relevant to the charges made by the applicant in the documents stated in 5(a) – (d) of her affidavit.
11 Ms Walker states in her affidavit that from her inquiries from the records of the CFMEUW and the CFMEU Branch and other inquiries that:
(a) Mr Reynolds resigned as secretary of the CFMEUW on 21 December 2011 and Michael Buchan was appointed to the vacancy on 22 December 2011.
(b) Mr Kucera was employed as an in-house solicitor by the CFMEUW and the CFMEU Branch on or from 16 September 2002 until on or around 21 June 2007. As at 11 September 2008, Mr Kucera acted for the CFMEUW in PRES 3-6 of 2008.
(c) As to the allegations made which raised matters in respect of former official, Robert Wade, in charges 28 and 30, Mr Wade was an employee and elected organiser for the CFMEUW in 2004. On or around 27 July 2007, Mr Wade resigned from his employment and shortly thereafter moved to the Northern Territory to establish a branch of the CFMEU. Documents filed in the Commission state, however, that Mr Wade ceased to hold office before 1 January 2009.
(d) As to the issue whether a levy was placed on the CFMEUW's members in 2011, the executive minutes for 2011 show that no levy was placed on the members of the CFMEUW pursuant to r 11 in 2011.
12 The applicant filed an affidavit in response to Ms Walker's affidavit on 18 May 2012. His affidavit also deals with issues which he says provide evidence to support the matters alleged in respect of a number of the charges. When the statements made in his affidavit are examined, however, it can be seen that the statements made in the affidavit are largely in the nature of submissions unsupported by evidence or not supported by the documentary material annexed to his affidavit.
13 In relation to the matters set out in Ms Walker's affidavit, the applicant disputes the statement in Ms Walker's affidavit that the CFMEUW is 'an organisation'. He makes a submission that the CFMEUW is not an organisation by the true meaning of the word as it has been proved that the CFMEUW did not keep proper records, accounts, or minutes of general meetings and executive meetings. He also says it has been proved that the CFMEUW did not have any bona fide members, and for these reasons it cannot be legally referred to as 'an organisation'. He then goes on to say whether or not a levy was placed on members in 2011 under the rules of the CFMEUW, or under the rules of the CFMEU Branch, or under no rule at all, is not evidence of anything because:
a) Anything done in the name of the federal registered union is done in the name of the State registered union and vice versa. See paragraphs 37 and 38 of the attached Outline of submissions from the applicant.
b) It is not relevant if a rule was used or not used. What is relevant is that there are alleged levies being taken up with little to no accountability for the funds.
c) The allegation if proved would amount to more than just a breach of rule 11 of the CFMEUW rules.
14 The applicant contends in his affidavit it is not relevant that Mr Reynolds resigned on 21 December 2011 as the charges relate to times when Mr Reynolds was the secretary of the CFMEUW or its predecessors, The Western Australian Builders' Labourers, Painters and Plasterers Union of Workers (BLPPU) and The Australian Builders' Labourers' Federated Union of Workers – Western Australian Branch (BLF), and the same considerations apply for Mr McDonald in relation to the CFMEUW and the CFMEU Branch.
15 The applicant also makes the submission that it is not relevant as to when Mr Kucera or Mr Wade resigned.
16 The applicant's affidavit then goes on to deal with a number of allegations which relate to the conduct of Mr Reynolds, Mr McDonald, Mr Wade, David King, Terry McParland, persons employed by John Holland Constructions and payments made to the Construction Skills Training Centre.
17 Annexed to the applicant's affidavit is a bundle of audio tapes and corresponding compact disks which contain covert recorded surveillance of events that occurred in 1997 in Port Hedland. It is clear from the applicant's affidavit that the applicant was not personally a witness to any of these events in which he makes allegations. One of the central allegations to a number of alleged charges that the applicant makes is that the Construction Skills Training Centre has been used as a money laundering operation by the CFMEUW.
18 Annexed to the applicant's affidavit are documents which include company searches including a certificate of title for the land on which the Construction Skills Training Centre is located. The certificate of title shows the land is owned by the former BLPPU. In the applicant's affidavit he makes a submission about this fact and says that, in his opinion, this shows the BLPPU has never ceased to exist but moreover amalgamated with the respondent and remained active despite the respondent obtaining a new name as a new entity, the CFMEUW.
19 The applicant then makes an allegation in his affidavit that following the amalgamation of the BLPPU with the Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia, Western Australian Branch (CMETSWU) in September 2001 the members were 'stripped away' and moved across to the CFMEU Branch whilst the assets remained behind under the control of Mr Reynolds and Mr McDonald.
20 Annexed to the applicant's affidavit as annexure D is a copy of the application for incorporation of the association of the Construction Skills Centre which was lodged with the Ministry of Fair Trading Business Names Branch under the Associations Incorporation Act 1987 (WA) on 28 April 1998. In that application, it is stated that the association is not formed for the purpose of trading or securing a pecuniary profit to the members from the transactions of the association. Also annexed as annexure D to the applicant's affidavit is a copy of an application by Mr Reynolds certifying that he is the person authorised to apply for the incorporation of the association under the name Construction Skills Centre and a notice of special resolution made on 5 January 1999 recording a resolution made by the Construction Skills Centre that the name of the incorporated association shall be the Construction Skills Training Centre. From these documents, the applicant draws a conclusion in his affidavit that the name of the person purporting to be profiting from ownership of the training centre is Mr Reynolds. He also makes a submission in his affidavit that a corporation the size of the training centre which employs numerous persons with a high cash flow and high income from other sources cannot claim to be a non-profit organisation as it is a conclusion that beggars belief and warrants a thorough investigation.
21 The applicant then deals with the allegation in charge 46 that the executive and the trustees recently gave an expensive motor vehicle belonging to the CFMEUW to Mr Reynolds when he retired. In 'apparent' support of this contention, the applicant annexes to his affidavit a copy of a letter sent by the CFMEUW's instructing solicitors, Slater & Gordon, dated 27 April 2012. In the letter, which is annexure E, the CFMEUW's solicitor states that the vehicle referred to in the charge is, and has always relevantly been, in the ownership of the Construction Skills Training Centre and not the CFMEUW. Attached to the letter are duplicate copies of the vehicle's registration papers dated 13 December 2011, the vehicle's licence and insurance policy dated 12 March 2012 and the Certificate of Incorporation of the Construction Skills Training Centre. The letter also states:
Notwithstanding that a retirement benefit was once considered by the combined CFMEU and CFMEUW Executives in 2011, there is no current or operative motion on foot. Similarly, there is no extant Notice pursuant to CFMEUW Rule 16(9) or otherwise to have the matter considered by the General Meeting of CFMEUW members.
It follows that the premise of your Charge is fundamentally misconceived. There has been no gift or transfer of ownership of a vehicle as alleged by you.
22 The applicant in his affidavit says about this document, that the motor vehicle registration documents give the registered address of the vehicle in question as the CFMEUW. The applicant then makes a submission in his affidavit that the training centre has always been marketed to the members as the 'union training centre' so the Range Rover was and is at all material times owned by the CFMEUW and is not something that can just be given away. The applicant then makes an allegation in his affidavit that the letter is an attempt to deflect the applicant away from anything to do with the training centre and is founded upon the desperate need for the CFMEUW to cover up the alleged money laundering operation going on at the training centre.
23 The applicant then states in his affidavit that until the 2008 election ballot, Les Wellington was both an assistant secretary of the CFMEUW and general manager of the training centre and prior to the tenure of Mr Wellington, Kim Young was both assistant secretary of the CFMEUW and manager of the training centre. The applicant makes a submission that these facts contradict the attempt to claim that the vehicle was not owned by the CFMEUW because it was registered in the name of the training centre. He then asks if the training centre truly is a separate entity to the union, why is a paid union official employed to run it? The applicant also makes the submission again that either scenario requires a wider and thorough investigation into the operation of the training centre and who owns the training centre.
24 After making a general statement about various negative articles that have been written in newspapers in the past about the CFMEUW and its leaders, the applicant then goes on to say in his affidavit:
73. The evidence of rorting money, bribes, and blackmail and laundering it through the training centre is compelling. There is no doubt that at least 3 of the top 4 officials have brought the union into disrepute and the evidence filed here is certainly compelling enough to warrant a thorough and wide ranging investigation into the running of the union and the training centre since it's move to Radium St. Welshpool.
74. The evidence filed in these proceedings establishes both a prima facie case for criminal prosecution for fraud and misrepresentation in the way the training centre has been portrayed to the union Rank & File membership in respect of who owns it and who shares in the profits from it. There is also a potential prima facie case for deregistration of the CFMEUW until such time as it can prove authentic membership and accountability prior to hitching a ride on the back of the Federal union which is a different organisation.
75. The evidence filed in these proceedings also has a strong indication of a prima facie case of fraud and misrepresentation in the way the ownership of the land in Radium St Welshpool which the Training Centre is situated on, has been portrayed to the members. The BLPPU must be immediately extinguished properly as it is clearly still being used as a vehicle to cloak ownership of land and assets. In accordance with law the title deed for the land must now be transferred and become an asset in the control of the Federal union and its full executive powers.
25 The applicant's affidavit is littered with numerous allegations which relate to complaints against the CFMEUW and its related predecessors being made by other members which extend from about 1999. The applicant also deals at some length with his complaints about being dismissed by Downer Energy Systems Pty Ltd in 2006 and a complaint that the CFMEUW failed to promptly and honestly prosecute his claim for unfair dismissal.
26 Other documentary material the applicant refers to in his affidavit is in annexure J to his affidavit where is attached a chronological graph of a chart showing an alleged criminal record of Mr McDonald from February 1994 to March 2011. This document purports to set out a record of 18 criminal offences. The applicant makes a submission in his affidavit that based on the 'evidence' which is generally set out in his affidavit in respect of past events which he alleges have occurred and the criminal record of Mr McDonald, Mr McDonald is not a fit person to hold office and should be disqualified from ever holding office in a trade union immediately.
Respondent's submissions in support of the application to have the proceedings summarily dismissed
27 The CFMEUW's application seeks to have the application summarily dismissed. Counsel for the CFMEUW firstly points out that the application, filed on 16 December 2011, by the applicant for orders under s 66(2) of the Act on the ground of alleged breaches of rules of the union, is not confined to r 3. He specified those grounds as threats, violence, bribery, misappropriation of members' funds and tax evasion by officers of the respondent.
28 At a directions hearing on 16 February 2012, the applicant had at that time received the respondent's written submissions which variously identified the shortcomings in the application and the accompanying further particulars. Those submissions included extracts from the decision of Ritter AP in Stacey v Civil Service Association of Western Australia (Inc) [2007] WAIRC 00568; (2007) 87 WAIG 1229 [273] – [274] which should have at least put the applicant on notice that:
(a) His numerous allegations which are many years old would be susceptible to strike out; and
(b) The Commission's jurisdiction under s 66 of the Act was to keep an organisation 'on track' vis a vis its rules. The applicant also at that time had oral submissions from the respondent's counsel which included an invitation to the applicant to attempt to redress some of the vices in his case which had been identified and to remove the prejudice on part of the respondent and to rationalise the disparate allegations that had been made in order to bring some semblance of reason to the application (ts 14).
29 The CFMEUW submits that it should not fall upon it, or the Commission to parse out the allegations which, of themselves, may give rise to a prima facie case. Rather, the application itself, as particularised, should be wholly assessed in order to determine whether s 27(1)(a) of the Act is properly engaged. The CFMEUW says this approach is consistent with case management principles adopted in courts of general jurisdiction which reflect the same objectives as found in s 26 of the Act: see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. In jurisdictions which are guided by these principles, proceedings are susceptible to summary dismissal where a party fails to properly plead or particularise a case. In such a case, there are a number of possible outcomes where a party faces such a successful challenge to its pleaded case including the following:
(a) Striking out part of the pleadings which may mean the cause of action survives notwithstanding the removal of the impugned allegations; or
(b) If the court considers there are too many deficiencies to warrant a line by line attack on the pleadings, order that the entire claim be struck out. Such an order can be made notwithstanding that some pleadings in isolation may otherwise withstand close scrutiny. In that event, the court can in its discretion:
(i) give the party leave to re-plead its case; or
(ii) dismiss the proceedings without leave to re-plead.
30 The applicant was provided with an opportunity to correct the deficiencies in his application by furnishing answers to a request for further and better particulars which the applicant was directed to provide pursuant to the Commission's power in s 27(1)(o) of the Act. The CFMEUW points out that this provision is an important power designed to prevent unfairness to a party. The CFMEUW also points out that, as Mason CJ and Gaudron J said in Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279, 286, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The CFMEUW says that the applicant's answers do not clarify the issues in the case. Nor are the allegations put in the further and better particulars, true particulars. They do not state with sufficient clarity the precise case to be met, and, in any event, the applicant disclaims in his written submissions any reliance on the right to re-plead or re-cast his case. He has elected to stand or fall on the case that he has put up.
31 Consequently, the CFMEUW submits that the Commission should dismiss the proceedings in their entirety, if it is satisfied that the matters pleaded are sufficiently defective.
32 The CFMEUW says the application as particularised is defective, poorly drafted, and among other deficiencies, fails to adequately put the CFMEUW on notice as to the precise case it would be required to meet. They say this submission is supported by a minute of proposed orders filed by the applicant on 13 June 2012 in which the applicant seeks summonses to issue to 28 witnesses in his case alone. The CFMEUW says it is clear from the orders sought that the applicant is seeking a vast and wide ranging inquiry based on very general types of allegations. The CFMEUW says that overarching all of the grounds in the application for summary dismissal is the issue of time, cost and effort that would be expended if this matter proceeds to hearing and this is a legitimate fact to be considered in an application under s 27(1)(a) of the Act: Kangatheran v Boans Ltd (1987) 67 WAIG 1112. In circumstances where the applicant has refused to appropriately rationalise his allegations and has maintained an application replete with specious but serious allegations, if these matters proceed to hearing, the expense to the CFMEUW and to the public will be overwhelming and unrecoverable.
(a) Ground 1 of the objections – Abuse of process
33 In this ground the CFMEUW says the applicant seeks to re-litigate a very large number of matters already raised or determined in other proceedings or raise issues that should have been brought or raised in the proceedings in past matters. This ground also goes to the ulterior motives of the applicant. The CFMEUW says the applicant displays a continual total disregard for previous decisions of this Commission. Not only does he criticise them without gilding his opinion, he ignores them as if the decisions were not made and seeks to run his case again.
34 The CFMEUW points out the applicant contends in his submissions that because his various applications have been summarily dismissed, this does not qualify as litigation per se so he argues that he is able to bring the same matters back before the Commission in further attempts.
35 The true position of the applicant is said to be evident from the following contentions made by the applicant in the following documents filed by him:
(a) Various applicants in the Commission have been 'affronted by the most incredible and baseless decisions from the Bench such as the ruling in Pres 30 of 2002 ..., or the ruling in Pres 3 to 6 of 2008': applicant's submissions (8).
(b) 'Both the Union and the Registrar [of the WAIRC] are responsible for this malfeasance and or crime' – which involves allegations of unauthorised use of union credit cards and corruption (which allegations the applicant admits (in (23)) do not form part of his case): applicant's submissions (24).
(c) 'It has also been proved the organisation did not have any bona-fide members ... the entity known as the CFMEUW cannot be legally referred to as "an organisation"': applicant's affidavit (5).
(d) 'Anything done in the name of the Federal registered Union is done in the name of the State registered Union and vice versa': see (6(a)) of the applicant's affidavit.
(e) 'What followed the amalgamation of September 2001 is the members were stripped away and moved across to the [Federal Union]': applicant's affidavit (21).
(f) 'The Decision in Pres 20 [sic] of 2002 is fundamentally flawed': applicant's affidavit (65).
(g) 'There is also a potential prima facie case for deregistration of the CFMEUW until such time as it can prove authentic membership ...': applicant's affidavit (74).
36 The CFMEUW says these contentions betray the applicant's true intention to re-litigate matters that he has unsuccessfully argued in the past. They say 17 of the 42 charges involve attempts at re-litigating matters and are appropriately characterised as abuses of process. These are charges 11, 12, 13, 14, 17, 23, 26, 27, 28, 35, 36, 40, 41, 42, 43, 44 and 45.
37 The history of litigation commenced by the applicant in PRES 2 of 2008 which was made on 29 August 2008. This was an application for an election inquiry under s 66 of the Act in which he alleged breaches of r 27(7) and r 23(11) of the rules of the respondent. In these proceedings it was variously alleged that candidates:
(a) other than the applicant had commenced campaigning prior to the acceptance of nominations by the Western Australian Electoral Commission;
(b) were using union resources in elections.
38 The application was in effect an application for injunction which would have had the effect of postponing the pending elections of the CFMEUW. The application for urgent orders was dismissed. (Note: refer to reasons for decision).
39 In PRES 3-6 of 2008 an issue arose during the course of an election inquiry as to whether the CFMEUW had any members at all: Thompson v Reynolds [2009] WAIRC 00024; (2009) 89 WAIG 287. In these reasons the matter will be referred to as PRES 3-6 of 2008 and the reasons for decision given in those matters as Thompson v Reynolds. The applicant sought to intervene in an election inquiry. Contrary to the position the applicant took in PRES 2 of 2008, he sought to intervene in PRES 3-6 of 2008 to argue that the Western Australian Electoral Commission should not postpone the ballot. The CFMEUW makes two points about the application to intervene. First of all it says that the applicant in PRES 3-6 of 2008 took a diametrically opposed view to the position he had taken a month earlier in PRES 2 of 2008 in that in PRES 2 of 2008 he was seeking to postpone the election and in PRES 3-6 of 2008 he was seeking to make a submission that the election should not be postponed. The CFMEUW says this action shows the vexatious nature of the matters the applicant seeks to raise. The second issue the CFMEUW raises in relation to PRES 3-6 of 2008 is that although the applicant made an application to intervene at the commencement of the proceedings, he failed to renew his submission until the end of the hearing. This was despite the fact that the applicant was present in court during the entire proceedings. The CFMEUW points out that the applicant's application to intervene in PRES 3-6 of 2008 included grounds that he had been compelled to move to a safe location due to death threats received from parties connected to the CFMEUW election. However, notwithstanding the serious allegations, no such evidence was presented during the proceedings. At the end of the proceedings, the application for intervention was dismissed.
40 On 2 October 2009, the applicant commenced an application for an election inquiry in PRES 7 of 2008. In that application, he sought an urgent order and injunction that all assets and records of the CFMEUW be frozen, pending the outcome of the inquiry. The matter was dealt with by the CFMEUW through the proffering of undertakings given in written submissions filed on 9 October 2008 by Mr Reynolds not to destroy any documents (physical, electronic or otherwise) in the possession, custody or control of the CFMEUW falling in the categories of minute books, documents prepared by the CFMEUW accountants, any files created by the CFMEUW in relation to legal proceedings it had been a party to, any bank records relating to bank accounts controlled by the CFMEUW, any membership roll of the CFMEUW and copies of any documents lodged in the Commission relating to the registration of the CFMEUW as an organisation under the Act, the finances of the CFMEUW, enterprise agreements to which the CFMEUW is a party and the 2008 election of CFMEUW office holders (exhibit 1, tab 21, [34] and tab 22 (ts 249)). Notwithstanding that the application in PRES 7 of 2008 was discontinued on 16 October 2008, on 31 August 2010 the applicant had made a written submission in that matter that he had 'evidence of serious mal-administration by persons on the union executive, pertaining to the destruction of records, manipulation of records, and the acquisition of property and assets belonging to the CFMEUW' (exhibit 1, tab 24).
41 It was also alleged by the applicant in PRES 7 of 2008 that there was an 'alleged theft of cash funds by some officials inside the CFMEUW totaling [sic] somewhere between $5,000,000.00 and $15,000,000.00 over an extended period and, conspiracy to murder and, premeditated murder' (exhibit 1, tab 24). The respondent says that not only are these allegations scandalous, but shows the applicant is willing to make any sort of allegation that would further his cause and is no way circumspect about the allegations that he makes. Notwithstanding those extremely serious allegations, there was no evidence or proceedings commenced in order to further support those allegations.
42 In or around September 2008, the applicant commenced proceedings in the Federal Court of Australia in matter PEG 149 of 2008 in which he sought an application for an election inquiry into the elections of the CFMEU Branch. He also sought, by way of relief, an 'indefinite injunction' against the Australian Electoral Commission to halt the election process (exhibit 1, tab 25). This application was amended on 1 October 2008 and thereafter discontinued on 13 October 2008 (exhibit 1, tab 27).
43 On or about 13 October 2008, the applicant commenced a second application for an election inquiry into the elections of the CFMEU Branch in matter WAD 221 of 2008 in the Federal Court of Australia. As part of that election inquiry, he again sought interlocutory relief in the form of an indefinite injunction to halt the election process. The main ground of the application was that there was an irregularity based on an allegation that union resources (including in the form of the membership register) had been used by candidates other than himself (exhibit 1, tab 28). The application was dismissed without an election inquiry being instituted: Mcjannett, in the matter of an application for an inquiry in relation to an election for offices in the Construction, Forestry, Mining and Energy Union, Western Australian Branch [2009] FCA 996.
44 On 23 February 2009, the applicant commenced application PRES 2 of 2009 seeking an election inquiry. The thrust of the application involved an issue of disclosure of members' telephone numbers to certain candidates during an election process. An application was made by the CFMEUW to intervene to have the matter summarily dismissed. The applicant opposed the summary dismissal application and alleged that any such order made under s 27(1)(a) of the Act 'could be seen as malfeasance at best, or at worst, official corruption in the form of one State Agency "the WAIRC" using its vested powers to cover up corruption in another State agency "the WAEC"' (exhibit 1, tab 45). The application was summarily dismissed by Ritter AP on the basis that the application was moot, as the 2008 electoral process had been halted by an order made on 16 September 2008 and a new election had been ordered to take place on 29 February 2009. It was also found that the supply of the 2008 electoral roll to Mr Reynolds and Mr Kavanagh prior to 16 September 2008 was not an irregularity in connection with the election which was ordered to take place on 28 January 2009: Mcjannett v Reynolds [2009] WAIRC 00211; (2009) 89 WAIG 633.
45 On 29 June 2009, the applicant commenced proceedings in PRES 5 of 2009, again seeking an election inquiry and again alleging 'fraudulent registration and administration of the CFMEUW' (exhibit 1, tab 51). In this application the applicant alleged that the CFMEUW has no legal basis for existence and that the union has less than 200 members and therefore should be deregistered. However, the notion that the CFMEUW has no members was a matter that had been squarely dealt with and rejected in PRES 3-6 of 2008: Thompson v Reynolds. This application too was summarily dismissed on two grounds. Firstly, on the basis the application was clearly an attempt at re-litigating issues that had previously been determined by the Commission: Mcjannett v Reynolds [2009] WAIRC 1282; (2009) 89 WAIG 2395. The second basis upon which the matter was dismissed was that the applicant had sought to approbate and reprobate in that he sought to bring the application on the basis that he was a member and a candidate in the election and then sought to argue that there were no members of the CFMEUW. The CFMEUW points out that the applicant seeks to raise this issue again in these proceedings in charges 17 and 35. The applicant also raises a similar issue in charge 44.
46 On 15 June 2011, the then secretary of the CFMEUW, Mr Reynolds, commenced APPL 31 of 2011 seeking a right of entry permit for assistant secretary, Mr McDonald. The applicant sought to intervene in those proceedings on the last day of hearing. His grounds for intervention included allegations of 'a money laundering operation … within the CFMEUW' and that 'the CFMEUW has very few and possibly zero bona fide financial members'. The application for leave to intervene was dismissed: Re Reynolds [2011] WAIRC 00989; (2011) 91 WAIG 2212. The Commission in Court Session found it would be an abuse of process to allow the application to intervene as it was too late for the hearing to be re-opened.
47 On 18 November 2009, the respondent commenced an application in the Commission to alter its rules and to seek a certificate under s 71 of the Act: FBM 6 of 2009. This application arose squarely out of issues revealed and considered by Ritter AP: Thompson v Reynolds. The applicant sought to intervene in FBM 6 of 2009. In an affidavit filed in support of the applicant's application to intervene he alleged that when the CFMEUW applied for transitional registration the evidence they offered was fraudulent because Mr Reynolds substituted the members of the state union with the members of the federal union. The applicant then also made allegations about his employment at the Collgar Wind Farm and made complaints about an alleged failure to accept payment of union dues and threats to expel him. He also alleged that the actions of the CFMEUW were a belligerent and amateurish attempt to get him out of the way before the CFMEUW progressed its application for a s 71 certificate and rule change which amounted to a gross abuse of power.
48 When the applicant's application to intervene in FBM 6 of 2009 was heard, the applicant made a submission that the Full Bench was obligated to adjourn the matter indefinitely whilst the allegations he made were investigated by the Corruption and Crime Commission (exhibit 1, tab 71, [15]).
49 Notwithstanding the findings in PRES 3-6 of 2008 (Thompson v Reynolds), the applicant also based his application to intervene in FBM 6 of 2009 on the ground that the CFMEUW was substituting members and finances from and possibly to another union (exhibit 1, tab 75) and made the following submissions from the bar table:
(a) 'The executives from the union are stealing funds. I have no qualms in making that allegation. No hesitation whatsoever. We have the evidence. Senior officials of this union are arranging to interfere in members' employment and arranging to have them dismissed because they simply don't like them, or don't like what they've said or whatever. There have been a number of assaults, a number of threats, death threats. Every imaginable type of violent personality is emanating from this union executive' (exhibit 1, tab 76, ts 6).
(b) 'If the Commission today allow [sic] this section 71 certificate, they are adding to the criminal activity' (exhibit 1, tab 76, ts 6).
(c) 'Mr Ritter's decision is somewhat hesitant when you read it in PRES 3 to 6. He had some hesitation in allowing all of this to continue, but again he was constrained by the matters that were before him, and it wasn't an application to determine whether they were legitimate members or not' (exhibit 1, tab 76, ts 6).
(d) 'Your Honour, I've pointed out to you in documents in the past there is somewhere between five and 15 million dollars missing. Now, that's very serious. I've pointed out that there are no legitimate members of the CFMEUW. I've pointed out that the CFMEUW and its training centre are being used as a money-laundering operation' (exhibit 1, tab 76, ts 9).
(e) '… perhaps Mr Ritter will be explaining that to the CCC some time down the track' (exhibit 1, tab 76, ts 10).
(f) 'I should only raise that the allegations that have already been put before this court are criminal allegations – go as far as premeditated murder, and – so this is very serious, and I cannot express that enough' (exhibit 1, tab 76, ts 14).
50 The Full Bench dismissed the applicant's application to intervene. In reasons for decision in Re The Construction, Forestry, Mining and Energy Union of Workers [2011] WAIRC 01175; (2011) 92 WAIG 6, the Full Bench found at [11] and [13]:
[11] When the application to intervene was heard on 16 December 2011, Mr Mcjannett outlined particulars of the grounds of his application. In summary the points he made were as follows:
(a) Officers and employees of the State organisation had interfered in contractual relations of members with their employer and had committed criminal offences and amongst other offences had stolen or misappropriated funds;
(b) There were no members of the State organisation;
(c) The State organisation had filed false returns in the Commission.
[13] After hearing submissions from Mr Mcjannett and from counsel for the applicant, the Full Bench dismissed Mr Mcjannett's application to intervene. The reason why the application was dismissed is that the Full Bench was not satisfied that Mr Mcjannett had shown a sufficient interest in the proceedings before the Full Bench. This is because the Full Bench formed the opinion that if the substantive application by the State organisation was to be granted, the ability of Mr Mcjannett to pursue a review of his allegations would not and could not be affected. This is in part because the matters raised in [11](a) by Mr Mcjannett are matters that if Mr Mcjannett wishes to pursue, can only be investigated by the Police or the Corruption and Crime Commission. As to the contention that the State organisation has no members, this issue has been litigated at length and found to have no merit by Ritter AP in Thompson v Reynolds [2009] WAIRC 00024; (2009) 184 IR 186; (2009) 89 WAIG 287 and Mcjannett v Kevin Reynolds, Secretary – The Construction Forestry, Mining & Energy Union of Workers [2009] WAIRC 01282; (2009) 89 WAIG 2395. In relation to the issue raised in [11](c), this is not a matter that can be considered by the Full Bench when hearing an application for a declaration under s 71 of the Act. This is a matter, (if it is to be pursued), that may be raised with the Registrar of the Commission.
51 Whilst the applicant argues that some of the previous actions in this Commission may have touched on a small part of the matters raised in this application, it cannot be said with any certainty whatsoever that those particular matters were ever litigated because there was no trial in all of the previous matters referred to apart from PRES 3-6 of 2008. The CFMEUW says this submission must be rejected as a court's jurisdiction to protect a party from an abuse of process constituted by an attempt to re-litigate a case already disposed of is not limited to cases where those technical requirements (such as res judicata or issue estoppel) can be made out: Walton v Gardiner (1993) 177 CLR 378, 393 (Mason CJ, Deane and Dawson JJ); Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 [66] – [69] (French J). Repeated applications for interlocutory orders may also constitute an abuse of process: D A Christie Pty Ltd v Baker [1996] 2 VR 582. This jurisprudence it says applies to s 27(1)(a) of the Act.
52 The CFMEUW argues that if the applicant's argument is accepted, it could face similar types of applications in the future, notwithstanding it might be successful in relation to the striking out of the application in this matter.
53 In D A Christie Pty Ltd v Baker Justice Hayne spoke of awarding a cost on an indemnity basis may prove a sufficient deterrent to the making of repeated applications and may offer considerable protection to a respondent. Although Justice Hayne in that matter found that that was not a complete protection in this jurisdiction (602), the CFMEUW says because the Commission is a no legal cost jurisdiction there is no form of protection of the nature that is found in other courts exercising common law jurisdiction, and this is a matter that should be recognised when the Commission exercises its discretion under s 27(1)(a) of the Act.
(b) Ground 2 of the objections – Rules not amendable to breach
54 The respondent says that the following charges fail to identify conduct capable of giving rise to a breach of the respondent's rules; or, alternatively, a rule that is amenable to contravention: 1, 2, 3, 4, 5, 7, 8, 9, 10, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46.
55 The CFMEUW points out that this list amounts to 92% of the alleged charges. In addition, the applicant does not provide any reasonable particulars of the manner in which he contends that the rules of the CFMEUW have been breached, either specifically or generally. This is so notwithstanding the fact that he was ordered on 16 February 2012 to file submissions directed to that very issue.
56 The two main rules that are repeated in the charges are r 3 and r 35. Rule 3 of the rules of the CFMEUW is the objects clause. The CFMEUW says it is incapable of contravention for the purposes of s 66 of the Act as r 3 is aspirational and facultative at best. The CFMEUW argues that r 3 is not mandatory and cannot create obligations susceptible to breach: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [93].
57 The CFMEUW argues by way of example, r 3(25) provides that an object by which the CFMEUW is established is 'to enrol in the Union all persons eligible to become members'. The CFMEUW has never achieved this objective. That fact, however, was clearly not intended to give rise to an action for breach if it transpired that 'all persons eligible' were not in fact enrolled.
58 The CFMEUW points out that the applicant makes no attempt to reply to the submissions of the CFMEUW. Consequently, the Commission should strike out those charges which are identified in relation to this ground of objection.
(c) Ground 3 of the objections – No standing or jurisdiction
59 Within the charges the applicant alleges breaches of:
(a) the Defamation Act 2005: see Charge 14
(b) the 'Electoral Act' (presumably the Electoral Act 1907): see Charge 11
(c) the Oaths, Affidavits and Statutory Declarations Act 2005: see Charge 35;
(d) "taxation laws" (which laws alleged to have been breached are unknown): see Charge 27;
(e) various criminal offences (see Charges 15; 16; 19; 28 and 30) and a human rights claim (see Charge 24, though this Charge has now been discontinued):
(f) Charge 46 seeks an 'inquiry' absent an election.
60 In the relief sought by the applicant, he seeks orders including:
(i) Disqualifications from office (Prayers 2 and 3)
(ii) Apologies for a person other than the Applicant (Prayer 3);
(iii) Mandatory orders concerning litigating on behalf of a person who is not an applicant in the proceedings (Prayer 4);
(iv) Apologies to the Applicant concerning his arrest in Bali (Prayer 5);
(v) Retractions concerning allegations made during an election in '2008.9' (Prayer 6);
(vi) Repayment of monies based on 'misappropriated funds' (Prayer 7);
(vii) Re-instatement of the membership a person who is not an applicant in the proceedings and who commenced his own proceedings in Terence McParland v The Construction, Forestry, Mining and Energy Union of Workers [2002] WAIRComm 6935 (12 September 2002) (Prayer 8);
(viii) Deregistration of the Union (Prayer 11) (s 73(8) and s 73(12) of the Act).
61 The charges which the CFMEUW says there is either no jurisdiction or the applicant has no standing to bring are as follows: charges 4, 7, 9, 10, 11, 14, 15, 16, 17, 18, 19, 20, 21, 23, 26, 27, 28, 30, 34, 35, 37, 39, 46.
62 Counsel for the CFMEUW points out that much of the applicant's affidavit filed in this matter deals with allegations that concern Mr King, a former organiser of the CFMEU, Mr McParland, a former member who ran for election, and Kevin Aitkin, a former member. The CFMEUW says, apart from the fact that these matters involve allegations which are very old and cannot be said to relate to the observance of the rules of the CFMEUW at this particular period of time, these matters are not matters which the applicant is relevantly affected so as to have a sufficient interest to invoke the provisions of s 66 of the Act in respect of those matters.
63 The CFMEUW points out that in Stacey the concept of observance of an organisation's rules is to keep an organisation on track in accordance with its rules so that this suggests some contemporary connection between a s 66 application and any conduct said to give rise to it and any orders or directions to be made.
64 The CFMEUW also raises the question of whether it is in the public interest for this Commission to entertain charges that date back so far in time that it cannot be said that they can in any way involve the objective of keeping the CFMEUW on track.
(d) Ground 4 – Out of time
65 The CFMEUW points out that over 80% of the charges the applicant seeks to bring are over two years old. It says of the 42 charges:
(a) 1 allegedly took place from 1994 (18 years ago);
(b) 1 allegedly took place from 1995;
(c) 1 allegedly took place in 1997;
(d) 1 allegedly took taken [sic] place in 2000;
(e) 3 are said to have taken place in or from 2001;
(f) 1 allegedly took place in 2002;
(g) 3 are said to have taken place in 2006;
(h) 2 are said to have taken place in 2007;
(i) 7 are said to have taken place in 2008, of the 7 Charges, 4 allegedly relate to the same conduct concerning the "ERMS blacklist";
(j) 3 are said to have taken place in 2009;
(k) 4 are said to have taken place in 2010;
(l) 1 are [sic] said to have taken place in 2011;
(m) only 9 of the Charges refer to a specific date;
(n) 15 are undated. (5 of these 15 Charges have no particularity and are embarrassing);
66 The CFMEUW says the charges which are out of time are as follows: charges 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 25(?), 26, 27, 28, 29, 30, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 45.
67 The only charges that fall within the permissible temporal test in Stacey are charges 39 and 46. These charges, however, are fundamentally misconceived. Charge 39 relates to the 'ERMS blacklist'. ERMS is an acronym for electronic resource management system. It is a logistics electronic data base. Charge 39 is also the subject of charges 1, 2, 8, 9 and 38. Charge 39 is embarrassing; it involves an alleged failure to mount a forthright defence to a Federal Court action. It also suggests the CFMEUW was about to take action in respect of the matters in charges 1, 2, 8, 9 and 38 which is contrary to what was therein alleged. The Federal Court proceedings were apparently instituted in or about September 2011. The CFMEUW says that the submission that an entity is in breach of its rules because it takes a tactical and strategic decision in litigation to defend, or not defend, without more, can only be a charge devoid of particularity, or could not, in any event, amount to a breach of a rule in those circumstances.
68 The other charge which does not suffer from the vice of staleness is charge 46. The allegation is that the executive or trustees recently gave an expensive motor vehicle belonging to the CFMEUW to Mr Reynolds when he recently retired. Charge 46 is misconceived as the applicant bases his assertion on the transfer of ownership of a vehicle from the CFMEUW to the immediate past secretary, Mr Reynolds. The solicitors for the CFMEUW wrote to the applicant providing him with information relevant to this allegation, and inviting him to withdraw the charge. He has refused to do this, notwithstanding the evidence that the vehicle was owned by a separate entity and not the CFMEUW and has not been transferred. The applicant's answers and an email sent to the CFMEUW's solicitors on 27 April 2012 disclose that the applicant does not profess to know who owned the vehicle but rather seeks an inquiry (exhibit 1, tab 103). There is no jurisdiction for an inquiry under s 66 absent an election. He does not know exactly what the factual situation is. In other words, he does not have a prima facie case to put up; he simply has a suspicion and seeks an inquiry as to whether there is a breach of the rules of the CFMEUW.
69 The second issue which is raised in relation to charge 46 is that an inquiry is sought into the Construction Skills Training Centre which would constitute if allowed an inquiry into a separate legal entity, not the CFMEUW. Consequently, if there was an asset that was given away by that entity, that could not amount to a breach of a rule of the CFMEUW.
70 Whilst the applicant argues that some of the allegations of wrongdoing by union officials did not surface until many years later, the CFMEUW points out that there are no particulars as to which charges this contention relates to. To the contrary, however, it appears that all of the matters that the applicant relies upon were either public knowledge many years ago and/or have been raised by the applicant previously. Notwithstanding that the BLPPU no longer exists as its registration was cancelled following the amalgamation between the BLPPU and the CMETSWU in September 2001, a very substantial part of the applicant's affidavit and submissions is concerned with events that occurred prior to 27 September 2001, and accordingly could not be matters relevant to questions of performance or observance of the rules of the CFMEUW.
71 In relation to the matters that have occurred since 27 September 2001, the applicant has not disclosed any reasons or cogent evidence as to why the otherwise stale matters that have been identified should, in the public interest, be the subject of a hearing. This issue is also raised in grounds 5 and 6.
(e) Grounds 5 and 6 – Not in the public interest
72 The CFMEUW says that these two objections apply to all of the charges which are sought to be brought by the applicant. On any view of the vast majority of the allegations which are put, they seek to scandalise the CFMEUW and its officials. In those circumstances, there is a legitimate expectation that the CFMEUW be informed with a level of precision of the exact nature of the case that is to be met. This application fails to satisfy that requirement.
73 To the contrary, the application presents as a stream of a conscious attempt to throw every conceivable allegation at the CFMEUW and its past and present officials in an attempt to have something stick. It appears that no matter what occurs to the applicant (including a number of dismissals from employment, and an arrest in Bali on drug charges) such matter becomes a ground for litigation.
74 Examples of the applicant's approach to matters before the Commission include the following:
(a) In PRES 2 of 2008, he commenced an application under s 66 and sought orders which would have postponed the election. However, in PRES 3-6 of 2008, he sought to intervene to ensure that the election was not postponed;
(b) In charge 35 he complains that Mr Reynolds deliberately avoided taking legal steps to obtain a certificate under s 71. However, the applicant attempted to intervene in the application for a s 71 certificate in order to oppose the application;
(c) The applicant has in previous proceedings alleged premeditated murder and other serious crimes. None of these matters are now particularised in this application.
75 In these circumstances, the Commission can have no confidence that there is any veracity in any of the applicant's allegations, or his motivation is consistent with the Commission's remit under s 66 to keep the organisation on track vis-à-vis its rules.
76 Other charges are simply trivial. Charge 23 raises an allegation that the president failed to reply to correspondence from the applicant. Charge 20 also raises another trivial issue. It involves an allegation that when the applicant was arrested in Bali on allegations of importing drugs, Mr McDonald told the national news media that he would not assist him.
77 The charges are devoid of particularity. For example, in charge 15 it is alleged that Mr McDonald and Mr Reynolds ordered multiple levies upon members during the period of 2001 to 2011 and the union did not advertise the purpose or ratify the levies in accordance with r 11(1). When asked for further and better particulars in relation to this allegation, the applicant stated in his answers that cash was siphoned off to fund opulent lifestyles for union officials. He does not particularise who, how, when or where, but goes further in his answers and says that no alleged offences have yet been made out, that the charge that relates to possible offences and there needs to be a thorough investigation.
78 The CFMEUW also makes the submission that when all of the charges are examined it is clear that they are vexatious in nature.
79 In addition, the applicant in his answers now discloses a case that extends beyond what is particularised. He now seeks a wider investigation into the operation of the training centre. In his submissions he also refers to the Building Trades Association of Unions of Western Australia (Association of Workers) (BTA). The applicant contends that there needs to be a microscope applied to that organisation and the running of it. This is an entirely new allegation which is not referred to in the charges. This again is a vexation of the respondent. But, in any event, the BTA is a separate entity from the CFMEUW.
80 The CFMEUW argues that where serious allegations are made against an organisation that the standard of proof that must be applied is the Briginshaw standard of proof and that the Briginshaw standard should be applied by the Commission in these proceedings when considering whether a prima facie case can be said to be raised in relation to each of the charges. In particular, the CFMEUW says that once the Commission is aware of the history of inconsistent approaches that the applicant has made in past matters, the Commission should be extremely wary of the assertions and the evidence put forward on behalf of the applicant in considering whether to strike out the applicant's application. The CFMEUW says it is clear that the applicant is prepared to say or do anything to tarnish the reputation of the CFMEUW. This is revealed not only by the number of allegations that are put, but is illustrated by the allegations that he makes about the CFMEUW being involved in serious crimes, in particular premeditated murder. Whilst there is no evidence or particulars of the allegations before the Commission, at no time does the applicant fall back from these allegations, but simply says there are substance to them without providing any particulars of them whatsoever.
81 Although the applicant concedes the Construction Skills Training Centre to be a separate legal entity incorporated under the Associations Incorporation Act, the height of the applicant's factual case is that there was some overlap until 2008 between the personnel who ran the Construction Skills Training Centre and the CFMEUW. On the evidence, the training centre may be found to have a close association with the CFMEUW in light of its formation and the obvious overlap between it, the objects and the building and construction industry training that the training centre carries out. However, this could not, on any view, be sufficient to bring the operation of the training centre within the jurisdiction of the Commission under s 66 of the Act unless there is a CFMEUW rule identified which is said to require performance and observance.
82 It is plain that the applicant seeks a wide ranging investigation into the operation of the training centre based on the allegations made. The Commission does not have jurisdiction, in any event, to conduct such an inquiry of the type sought by the applicant under s 66 of the Act when it is dealing with a matter concerning only the performance and observance of the rules. In any event, the applicant has admitted he does not have evidence of the matters he alleges sufficient to establish even a prima facie case in this respect.
Applicant's submissions
83 The applicant says that the application which he makes under s 66 of the Act for non-observance of the rules is as set out in the form 1 application and the particulars provided do not expand beyond the allegations in the application and is not an attempt to re-litigate any previous matters. In particular, he says any and all evidence from previous matters raised in the material relied upon, are simply for corroborating evidence. He also says his submissions are made on the basis that if he mentions previous litigation it is on the basis that there was evidence adduced in those matters that supports and corroborate the charges and the claims he makes.
84 When the application to strike out was heard, the applicant objected to the tender of exhibit 1. Exhibit 1 comprises three volumes of documents contained under 103 tabs which set out the history of litigation undertaken by the applicant and other persons mentioned in the alleged charges. The applicant argued that the materials contained in exhibit 1 are irrelevant and have no relationship with the matters sought to be litigated in this application and amount to unnecessary expense to the CFMEUW. The applicant also stated in his written submissions that the materials in exhibit 1 represent a damning indictment on the Commission over its reluctance to address the 'rot' in the running of the CFMEUW and its so called training centre. At the hearing of the application to strike out this submission was rejected and the documents were received into evidence as exhibit 1.
85 The applicant contends the matters alleged in the charges have not been previously litigated for the reasons he pleads in his further and better particulars. He does, however, concede that whilst some previous actions in this Commission may have touched on a small part of the matters raised in this application, it cannot be said with any certainty whatsoever that those particular matters were ever litigated because there was no hearing of the merits of the previous matters apart from PRES 3-6 of 2008 (Thompson v Reynolds).
86 The applicant says he has put forward a prima facie case that the previous secretary of the CFMEUW, Mr Reynolds, has dodged accountability for the entire duration of the existence of the BLPPU and the CFMEUW, so it follows that it is in the public interest that a prima facie case against this organisation must no longer be avoided.
87 The applicant sets out in detail his submission that the Commission has failed to address what he says are his, other members and former members of the CFMEUW's complaints about the union and its officials. He says that when victims such as Mr McParland, Mr Aitkin, Mr King and himself turned to the Commission for help they were dismissed and abandoned.
88 The applicant is highly critical of a number of previous decisions of the Commission, in particular in PRES 30 of 2002, which was an application involving Mr McParland, and PRES 3-6 of 2008 (Thompson v Reynolds).
89 The only basis on which the applicant concedes that there is any deficiency in the pleadings is that he states that certain evidence has not been fully disclosed due to security issues. The applicant says this is an extenuating circumstance so that, even if the application is seriously deficient, the Commission has a duty to the community to ensure that the more serious allegations cannot be proved. He also says that the pleadings are to date not defective, if defective at all. He is not seeking liberty to re-plead. He is seeking a hearing of the triable allegations and the administration of justice and the restoration of accountability in the CFMEUW. The applicant denies that he is re-litigating issues. However, he does say if he was going to try to re-litigate everything he accepts that he would need to re-plead. However, he says there is no necessity for him to do so.
90 The applicant points out that the standard of proof in the charges he seeks to bring must be judged on the balance of probabilities; and that the particularisation in this matter will become protracted when witnesses give testimony and company records are subpoenaed. By this submission, the applicant appears to be saying that particulars of his case will emerge during the evidence. Consequently, he says until such time as they give evidence it is not appropriate for this court to regard the matter with such stringency as a defamation case or a criminal trial. The applicant made an oral submission that when analysing each of the charges, the Commission should look at the allegations at their highest. He also said 'goodness knows what witness testimony we're going to hear from the 29 witnesses' he wishes to call to give evidence (ts 138).
91 As to the complaint by the CFMEUW that some of the allegations had taken place some time ago, the applicant says that in some cases evidence of the wrongdoings by union officials did not surface until many years later. He also says that these complaints should be dealt with now because the same officials are running the CFMEUW.
92 In relation to the submission made by the CFMEUW that anything prior to the registration date of the CFMEUW cannot be litigated, the applicant says it is clear from the evidence that:
(a) The BLPPU are one and the same by way of integration.
(b) The training centre is still purported to be owned by the BLPPU.
(c) The rules of the BLPPU and CFMEUW are identical.
(d) The officials of the BLPPU became officials of the CFMEUW upon amalgamation.
93 Consequently, he argues jurisdiction over the BLPPU has not yet in any way been extinguished. The applicant says it is open for the Commission under s 66 of the Act to review the activities of the former BLPPU as Mr Reynolds was the secretary of the BLPPU and Mr McDonald was the assistant secretary of the BLPPU. Although he accepts it was a different union than the CFMEUW, it was a union that became the CFMEUW. He argues it did not just cease to exist and a separate group of people formed the CFMEUW. The same people brought the same assets with them, much of the same office staff and are occupying the same premises. The applicant points out the only difference in the rules of the BLPPU and the CFMEUW is that the front page states the name of the union.
94 The applicant claims that the evidence that he puts forward in his affidavit and attachments clearly shows a pattern by Mr Reynolds to use the rules of the CFMEUW at will, in order to purge the CFMEUW of what he (Mr Reynolds) deems to be undesirables. The applicant also makes a claim that in PRES 3-6 of 2008 that admissions were made by Mr Reynolds that they did not purge the register of members. Consequently, he says it can be concluded from that evidence that Mr Reynolds only ever used the rules to purge members that he did not like because they asked too many questions or ran in elections against him.
95 In relation to the CFMEUW's assertion that r 3 is not amenable to breach, the applicant argues that r 3 appears to be the most fundamental rule of the whole of the rules of the CFMEUW and forms the basis of the ethics of the CFMEUW. He says to allow departure from this rule is to severely lower the ethics of the CFMEUW.
96 In written submissions, the applicant makes a number of submissions in relation to the Construction Skills Training Centre. He points out that the address of the motor vehicle in question, which the applicant alleges was given to Mr Reynolds on his retirement as secretary, is an issue that needs to be investigated as the address of the vehicle on the registration papers produced by the CFMEUW's solicitors shows that the address is that of the CFMEUW and no evidence has been provided which shows who purchased the vehicle. The applicant complains that whilst the Construction Skills Training Centre has been marketed as either the 'union training centre' or as 'our training centre' it was incorporated as a non-profit organisation but has been able to turn over a large amount of money and employ a substantial workforce. From this he draws the conclusion that it is not feasible that it could be a non-profit organisation unless money was being siphoned off.
97 The applicant then goes on to make a number of other submissions which raise what he says are important questions to be answered in relation to the running of the Construction Skills Training Centre.
98 The applicant also makes a submission about registration of the BTA which is an association registered under the Act. The applicant contends that there needs to be a microscope applied to the running of that organisation and where it sources its funds and for what purpose, as the secretary of the CFMEUW oversees the BTA. The point he seeks to make about this allegation is the BTA provides another avenue for the spending of union funds. He says this corroborates his claims and charges that something is 'going on' down at the Construction Skills Training Centre and at the CFMEUW. In particular, when making oral submissions, he said (ts 137):
Perhaps that matter, with others, will be expanded on when Mr Reynolds gives his testimony at the trial of this matter. We can ask him: 'What is this? How much are you paying yourself for this?' Because we can assume that they are because the rules say they can, their own - the rules of that organisation, so they can set themselves a wage. Perhaps Mr Reynolds will be able to produce some minutes of a CFMEUW or CFMEU C&G Division executive meeting where they got - or where they ratified the decision to even form that organisation and register it at the union address and run it from the union address and appoint themselves - we presume the second employee would be Joe McDonald, but we don't know that; we're going to have to get them in the stand and ask them because I'm certain, if I write them a letter and ask them, I'm not going to get a response, so I won't waste any more paper on that, your Honour.
99 The applicant contends that the CFMEUW argues on the one hand that the state and federal entities of the CFMEUW and the CFMEU Branch are one and the same, but they also argue from time to time that they are separate entities when it feels it needs to enforce a particular rule or hide from an action or event taking place in the other jurisdiction. The applicant also says that the CFMEUW makes the same representation about the Construction Skills Training Centre whereby it sometimes says it is a wholly owned asset of the CFMEUW and alternatively sometimes says it is a private enterprise. The applicant argues that the Construction Skills Training Centre appears to have always been used as a source of funds for Mr Reynolds and his close associates. He attempts to make a submission that the Construction Skills Training Centre is owned by Mr Reynolds because the land on which the business of the Construction Skills Training Centre conducted is registered in the name of the BLPPU and Mr Reynolds was the secretary of the BLPPU. He also contends that the Construction Skills Training Centre is a private enterprise listed under the name of Mr Reynolds. He appears to base that submission upon the documents attached to his affidavit in annexure D, which is an application to incorporate the Construction Skills Training Centre under s 5(2)(b) of the Associations Incorporation Act. He also claims that the Construction Skills Training Centre does not operate as a non-profit organisation.
100 The applicant also made a submission that because the property on which the Construction Skills Training Centre carries out its business is registered in the name of the BLPPU, this fact constitutes a breach of the rules of the CFMEUW because after the amalgamation officers of the CFMEU did not registered a change of name with the Registrar of Titles.
101 In charge 46 allegations are made about the transfer of a vehicle to Mr Reynolds. The applicant says the issue as to who owns or owned the vehicle in question is still open for determination because the registered address of the vehicle is the address of the CFMEUW. The applicant tries to then put a submission that if the Construction Skills Training Centre was not formed for the purpose of trading or securing a profit to the members, then to give a Range Rover to Mr Reynolds is prima facie a breach of the Fair Trading Act 2010 (WA) and evidence of fraud.
102 In relation to the issues that were litigated in PRES 3-6 of 2008 (Thompson v Reynolds) and PRES 5 of 2009, the applicant says it is now open for him to raise the issue whether there are any members of the CFMEUW, as Ritter AP hesitantly found in PRES 3-6 of 2008 (Thompson v Reynolds) and PRES 5 of 2009, that there were members of the CFMEUW, and, on that basis, the findings of Ritter AP can be, or should be reviewed. The applicant also argues that Ritter AP found that no membership application forms for the CFMEUW were ever completed by members.
103 In relation to the criticism that the arguments he now seeks to raise should have been raised in PRES 3-6 of 2008, he says it was not possible for him to raise these issues for various reasons. Firstly, he was not a party to those proceedings. Secondly, his application to intervene was initially set aside and later dismissed. Thirdly, because the evidence showed that there was a duplication in membership in the sense that no s 71 certificate had been issued, the issue whether there were any members was not really revealed until the matter was winding up. Consequently, he did not seek to intervene on the basis that there were no members, as this issue did not come to light until later. Although, the applicant concedes that he litigated the issue whether there were any members of the CFMEUW in PRES 5 of 2009, he says that the decision in PRES 5 of 2009 was wrong and should not be accepted.
104 The applicant says it was found in PRES 3-6 of 2008 (Thompson v Reynolds) that entrance fees had not been charged by the CFMEUW as the testimony of Peta Arnold and Mr Reynolds established that entrance fees had not been properly administered. However, when making oral submissions he conceded that the evidence given in that matter is not sufficient for charge 18 to survive but said that witnesses who are members of the CFMEUW will give testimony that organisers told them that they did not have to pay the entrance fee when they were signed up. Their testimony would be corroborated by their bank records and the records of the CFMEUW. The applicant says that this charge will establish corruption, as such action is a deliberate attempt to disqualify anyone from being able to run for election and overtake the incumbents in their office, as any member would be disqualified from holding office, or running in an election, if they have not paid an entrance fee.
105 In relation to charge 36 and the allegations that relate to Mr McParland, the applicant says that this charge should not be struck out because Mr McParland suffered very similar circumstances to the difficulties the applicant has had with the CFMEUW and its officers, which shows a pattern of behaviour.
106 The applicant says he has a sufficient interest to bring each one of the charges before the Commission under s 66 of the Act, because as a member of the CFMEUW, he has a standing to deal with any breach of the rules of the CFMEUW.
107 The applicant concedes that he does not seek to bring the current secretary of the CFMEUW before the Commission to give evidence in relation to any charge as he has never heard a single negative allegation about the current secretary. These charges are about the actions of the executive as it was constituted until the time of the retirement of Mr Reynolds.
108 In relation to the charges that relate to allegations that are said to have occurred in 1998 and involved Mr King, the applicant says he was aware that these allegations occurred prior to the CFMEUW being formed, but he says this evidence is very compelling, serious and needs to be tested because if that was the behaviour of the people who were officers of the union in 1998 who are still running the CFMEUW today, then such conduct needs to be addressed.
109 In relation to the allegation which raises an alleged conspiracy with John Holland and a payment of $150,000 to the Construction Skills Training Centre, the applicant admits that the Cole Royal Commission heard evidence about this and made some recommendations and further investigations about this payment were held after the conclusion of the Cole Royal Commission. In relation to allegations of under the counter-cash payments, these allegations were investigated by the Australian Taxation Office, but the Australian Taxation Office did not take the matter any further.
110 He also concedes that the allegations of cash payments also arise out of matters investigated by the Cole Royal Commission. He then says (ts 151-152):
Secondly, if it is proved - Mr King's allegations that he makes later to the Tax Office - that that tape was then used by the secretary to blackmail John Holland out of $150,000 or he was going to hand the tape over to whoever, then we now have a further conspiracy to pervert the course of justice by Mr Reynolds. But of course, none of this had been tested.
What we've had has all just been, for one reason or another - got drifted sideways or shovelled under the carpet and these people are still running the union. Perhaps they're innocent, maybe we're going to find out that the tape from the HBI plant was all a mock-up, that it wasn't even John Anu and it wasn't Mr King and it wasn't the other fellow whose name there is - whose named, the 3rd party names the 4th party who's going to carry out the assaults. Maybe they're all just pretence, maybe it's all theatrics, who knows?
111 When it was put to the applicant that all of these allegations relate to events that occurred well over 10 years ago, the applicant returned to the submission that these people remain at large and the charges relate to the activities they are conducting today under the auspices of the CFMEUW. The applicant says that the evidence of Mr King will go to support his allegation that there is a money laundering operation going on at the training centre. The applicant also says the charges which he seeks to bring are in the public interest and in his interest as the applicant and other past and potential future victims of conduct by the CFMEUW. The applicant concedes that the President acting under s 66 of the Act does not have any jurisdiction to assist past victims, but he says the President under s 66 does have jurisdiction to assist future victims of the CFMEUW.
112 In relation to charge 39, the applicant alleges the CFMEUW failed to mount a defence to an action brought by the ABCC which prevented the CFMEUW from taking any action in respect of the ERMS blacklist. The applicant, however, concedes that the CFMEUW was not a party to the action brought in the Federal Court, as the action was brought against the CFMEU Branch. The applicant, however, argues that although the order of the Federal Court is binding on the Federal union, it also binds the officials of the CFMEUW.
113 In all of the circumstances, the applicant wishes to proceed with the charges and seek orders among other orders that the CFMEUW needs to be deregistered, the assets of the CFMEUW be taken over by the Public Trustee until such time as 10 new persons can form a new union and take back control of the assets of the CFMEUW.
114 The applicant says that he accepts the CFMEUW's submission that the Commission is not a criminal court. However, he says that as the Commission is responsible for the administration of the Act and the registration of the CFMEUW, it has jurisdiction over all the matters he alleges and the power to apply the relief sought, until such time as the Commission desires to transfer matters to a criminal jurisdiction, if it forms a view that there is a prima facie case for criminal prosecution.
115 When it was put to the applicant that the Commission can only make orders which deal with the future functioning of the CFMEUW, the applicant submitted that the President can make orders in relation to misconduct under s 66 of the Act and has the power to refer matters to courts of criminal jurisdiction and even to the police.
Power to summarily dismiss
116 The test to be applied when considering an application to summarily dismiss a substantive application was recently considered by me in United Voice WA v Minister for Health [2012] WAIRC 319; (2012) 92 WAIG 585 (Fiona Stanley Hospital (No 2)) wherein I observed [65]:
Exceptional caution is required by courts and tribunals when exercising the power to summarily dismiss. A claim should not be dismissed other than when it is clear there is no real question of fact or law to be tried: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87. President Steytler in Talbot & Oliver (a firm) v Witcombe [2006] WASCA 87 summarised the applicable principles as follows:
[21] … An action should only be dismissed as frivolous or vexatious if it cannot possibly succeed. Moreover, in deciding whether an action could possibly succeed, a court of first instance should be astute not to risk stifling the development of law by summarily disposing of actions in respect of which there is a reasonable possibility that it will be found in the development of the law, still embryonic, that a cause of action does lie: Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365 at 373.
[22] Similar principles apply in the case of an application to strike out a statement of claim as not disclosing a reasonable cause of action: Kimberley Downs Pty Ltd v State of Western Australia unreported; SCt of WA; Library No 6414; 25 August 1986 at 6–7. In Dalgety Australia Ltd v Rubin unreported; FCt SCt of WA; Library No 5485; 24 August 1984, it was held that it is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended for by the plaintiff that the pleading should be struck out. It has also been held in this jurisdiction that, in a case in which an application for summary judgment is combined with an application to the Court's inherent jurisdiction and with an application under O 20 r 19(1)(a) to strike out a pleading upon the basis that it discloses no reasonable cause of action, the Court is not confined by the manner in which the plaintiff has formulated his or her case on the pleadings and may consider not only the undisputed facts but also facts which are in dispute: Bride v Peat Marwick Mitchell [1989] WAR 383 at 394; and see, generally, Seaman Civil Procedure Western Australia (Vol 1) at [16.0.1] and [20.19.6].
Jurisdiction conferred by s 66 of the Act
117 Directions for enforcement of rules of a trade union registered under the Act is created solely by statute and is contained in s 66 of the Act. Traditionally, courts have refused to interfere in the internal affairs of voluntary associations where members have sought to challenge non-compliance with the rules of an association, unless the member has a proprietary interest: Cameron v Hogan (1934) 51  CLR 358; see the discussion in Australian Education Union v Australian Principals Federation (2006) 158 IR 360 [48] – [51].
118 Under s 66(1) of the Act, a member, a former member, a person who has applied for and not been admitted to a membership in an organisation or the Registrar acting on behalf of a member or of his or her own motion may apply to the President for a direction or order under s 66. Section 66(2) prescribes the orders and directions that can be made. Section 66(2) provides:
On an application made pursuant to this section, the President may make such order or give such directions relating to the rules of the organisation, their observance or nonobservance or the manner of their observance, either generally or in the particular case, as he considers to be appropriate and without limiting the generality of the foregoing may — 
(a) disallow any rule which, in the opinion of the President — 
(i) is contrary to or inconsistent with any Act or law, or an award, industrial agreement, order or direction made, registered or given under this Act;
(ii) is tyrannical or oppressive;
(iii) prevents or hinders any member of the organisation from observing the law or the provisions of an award, industrial agreement, order or direction made, registered or given under this Act;
(iv) imposes unreasonable conditions upon the membership of a member or upon an applicant for membership; or
(v) is inconsistent with the democratic control of the organisation by its members;
(b) instead of disallowing a rule under paragraph (a), direct the organisation to alter that rule within a specified time in such manner as the President may direct;
(c) disallow any rule which has not been altered by the organisation after a direction to do so pursuant to paragraph (b);
(ca) where the President disallows any rule under paragraph (a) or (c), give such directions as the President considers necessary to remedy, rectify, reverse or alter or to validate or give effect to, any act, matter or thing that has been done in pursuance of the disallowed rule;
(d) declare the true interpretation of any rule;
(e) inquire into any election for an office in the organisation if it is alleged that there has been an irregularity in connection with that election and make such orders and give such directions as the President considers necessary — 
(i) to cure the irregularity including rectifying the register of members of the organisation; or
(ii) to remedy or alter any direct or indirect consequence thereof;
and
(f) in connection with an inquiry under paragraph (e) — 
(i) give such directions as the President considers necessary to the Registrar or to any other person in relation to ballot papers, envelopes, lists, or other documents of any kind relating to the election;
(ii) order that any person named in the order shall or shall not, as the case may be, for such period as the President considers reasonable in the circumstances and specifies in the order, act or continue to act in and be deemed to hold an office to which the inquiry relates;
(iii) declare any act done in connection with the election to be void or validate any act so done.
119 The President is not in the position of a surrogate manager of an organisation by virtue of the powers conferred by s 66: Wauhop v Civil Service Association of Western Australia Inc [2003] WAIRC 08021; (2003) 83 WAIG 951.
120 The extent of the jurisdiction of the President to make orders and directions under s 66(2) of the Act was comprehensively reviewed by Ritter AP in Stacey. At [272] – [274] his Honour made the following observations which are relevant to this matter:
272 Section 66(2)(a), (b), (c) and (ca) are about the disallowance or alteration of rules which do not meet the standards set out in s66(2)(a). Section 66(2)(d) allows those parties set out in s66(1) to obtain the interpretation and therefore understand the meaning of a rule. This would generally be for the purpose of ensuring or checking if an organisation was acting in accordance with its rules. It is a similar power to s46 of the Act, with respect to awards. Section 66(2)(e) and (f) are about inquiries into election irregularities. As held by the IAC in Harken v Dornan and Others (1992) 72 WAIG 1727 this is a discrete aspect of the section and contains all of the President's jurisdiction and powers on the topic of election irregularity. Similarly, although not necessary to express any concluded view in this application, s66(2)(a) would seem to set out all of the bases upon which the President could disallow a rule.
273 A significant touchstone of the general power under s66(2) is the concept of the 'observance' of an organisation's rules. This demonstrates in my opinion that a key part of the s66 jurisdiction is, to put it colloquially, to keep an organisation 'on track' – running in accordance with its rules. This also suggests some contemporary connection between a s66 application, any conduct said to give rise to it, and any orders or directions to be made. The parties named in s66(1) can via s66(2) seek the assistance of the President to disallow/alter prohibited rules, to declare the interpretation of rules, inquire into election irregularities and make other orders to assist or require an organisation to observe its rules. The text and context suggests that any corrective orders are limited to those which have some present connection with the activities of the organisation and the observance of its rules.
274 In my opinion the purpose of s66 is not to correct long ago breaches which now have no relevance to how an organisation is running. Also, the ordering of compensation or damages for old breaches of the rules is beyond the scope and purpose of a s66(2) order.
121 Acting President Ritter then went on in Stacey to summarise the following principles that can be distilled from decisions of the Industrial Appeal Court [279]:
(a) An order for the purposes of the section must involve a command to someone to do something. (CMEWUA v UFTIU (1991) 71 WAIG 563)
(b) Section 66(2)(d) empowers the President to interpret a rule for the purpose of deciding whether to make an order or direction (UFTIU at page 569). Further or alternatively in the case of controversy an interested party may seek a declaration about the true interpretation of a rule. (Robertson at paragraph [54])
(c) The President may exercise jurisdiction under s66 where there has been an improper exercise of powers, contrary to the rules. (Carter v Drake (1991) 72 WAIG 2501 at 2504)
(d) Sections 66(2)(e) and (f) contain the only powers which the President may exercise under s66 in connection with election irregularities. (Harken v Dornan and Others (1992) 72 WAIG 1727)
(e) Declarations about the validity of meetings by an organisation are outside the power of the President under s66 unless as a matter of law the meetings were invalid. (Carter v Drake (1993) 73 WAIG 3308 at 3311, and see below). Therefore the President may declare invalid resolutions passed at meetings where the meetings were conducted in breach of the rules and the breach had the legal effect of invalidity. (WALEDFCU v Schmid (1996) 76 WAIG 3380 at 3382)
(f) An order for the purpose of requiring an organisation to act in accordance with its rules is within power. (WALEDFCU v Schmid (1996) 76 WAIG 639)
(g) If the grounds have been established for the making of an order under s66, the President does not have a discretion to refuse to make such an order. (Robertson)
(h) The purpose of the power given in s66(2) is to ensure that the persons identified in s66(1) have a means of enforcing the rules of an organisation. (Robertson)
(i) Due to s26(2) the President in considering what order to make under a s66 application is not restricted to the specific claim made. (Robertson)
122 One central issue raised in a substantial number of the charges sought to be brought by the applicant in this application, is that many events that are alleged to have occurred appear to have occurred a long time ago.
123 The President's power to make orders in respect of a past non-observance of a rule was considered in The West Australian Locomotive Engine Drivers' Firemen's and Cleaners' Union of Workers v Schmid (No 1) (1996) 76 WAIG 639. In Schmid (No 1), a delegates' conference resolved to increase annual honorarium paid to the general president and the general vice-president. The resolution was ineffective for want of compliance with provisions in the Act governing amendments to union rules. The increased unauthorised honoraria were paid for four years. An application was brought under s 66 of the Act for recovery of the unauthorised payments. The President found the general committee had a duty under the rules to recover the amounts paid by directing the trustees to take legal proceedings against the officers or members guilty of the 'misappropriation'. It was argued that the power to compel observance of the rules of an organisation could only be exercised to secure the performance of existing obligations under the rules and did not extend to the making of orders for the purpose of remedying past breaches of the rules. This principle had been applied in Darroch v Tanner (1987) 16 FCR 368. In Darroch v Tanner an application was made under s 141 of the Conciliation and Arbitration Act 1904 (Cth) to enforce the rules of a union. Section 141(1G) provided:
An order under this section may give directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules.
124 The Industrial Appeal Court in Schmid (No 1) did not definitively decide to follow Darroch v Tanner, but they did find that in the rules of The West Australian Locomotive Engine Drivers', Firemen's and Cleaners' Union of Workers there was a general obligation upon the general committee of the union to protect the property and funds of the union and a specific provision to direct the general trustee to take legal proceedings against any officer or member guilty of misappropriating any of its funds. These provisions, they found, enabled an order to be made by the President to direct the general committee to direct the general trustees to institute legal proceedings to recover sums paid to officers of the union that they were not entitled to. The Industrial Appeal Court then went on to quash an order that required the union itself to institute proceedings if the general trustees refused to do so, as this order was not supported by an express rule of the union.
125 In Stacey, Ritter AP analysed the decision of the Industrial Appeal Court in Schmid (No 1) and observed that although the point found in Darroch v Tanner was not conclusively decided in Schmid (No 1), he found that an order under s 66 of the Act can only be made where the order has contemporary relevance to the activities of a union or the observance of its rules and in purpose or effect secures the performance of an express existing obligation set out in the rules of a union [301] – [303]. Acting President Ritter also found in Stacey that there is no scope to enforce an implied rule under s 66 of the Act [326], [329] and [333] – [ 335].
126 As each charge sought to be brought by the applicant could in effect be considered a separate application under s 66 of the Act, in the sense that many of the matters alleged in the charges raise discrete issues, I will deal with each charge separately when I consider the grounds of objection.
Ground 1 – Abuse of process
127 When regard is had to the matters pleaded in charges 11, 12, 13, 14 and 44, it is clear that each charge raises allegations that have been raised, or should have been raised in election inquiries that were held by the President under s 66 of the Act in PRES 3-6 of 2008, PRES 7 of 2008, PRES 2 of 2009 and PRES 5 of 2009 or in the Federal Court in WAD 221 of 2008.
128 In WAD 221 of 2008, the applicant sought an indefinite injunction on the Australian Electoral Commission to halt the election process and an inquiry into the election process. He also sought that Mr Kavanagh and Mr Reynolds be disqualified from standing for election and/or holding office in the CFMEU Branch on grounds that members of the executive and other officers of the CFMEU Branch had authorised or used union resources for election purposes (exhibit 1, tab 28).
129 PRES 3-6 of 2008 were applications in relation to the process of election of offices in 2008. These applications proceeded as an inquiry into the 2008 elections under s 66(1) and s 66(2) of the Act into alleged irregularities in connection with the election for offices of the CFMEUW in which Mr Kavanagh and Mr Reynolds were candidates: Thompson v Reynolds [1] – [6].
130 In PRES 7 of 2008, the applicant made an application under s 66 of the Act for an order and injunction to freeze the records and assets of the CFMEUW pending the outcome of the inquiry in PRES 3-6 of 2008.
131 In PRES 2 of 2009, the applicant sought an inquiry into alleged irregularities in connection with the election of Mr Kavanagh and Mr Reynolds in 2008 (exhibit 1, tab 43). The application was dismissed: Mcjannett v Reynolds [2009] WAIRC 00211; (2009) 89 WAIG 633 (PRES 2 of 2009).
132 In PRES 5 of 2009, the applicant sought an inquiry by filing an application on 29 June 2009 under s 66 and s 73(3)(b) of the Act into alleged irregularities in connection with the conduct of the 2008 election for officers in the CFMEUW and alleged fraudulent registration and administration of the CFMEUW on grounds that there were less than 200 bona fide members of the CFMEUW when ballot papers were sent to over 10,000 persons (exhibit 1, tab 51).
133 In charge 11, the applicant alleges Mr Reynolds and Cam McCulloch in the ballots of 2008 and 2009, without the authority of a general meeting, used members' funds to publish and deliver election flyers. In charge 14, the applicant alleges that during the election in 2009 Mr McCulloch sent to members election material containing negative falsehoods about the applicant. These are issues that were squarely raised in WAD 221 of 2008 and, if they were to be seriously contended, should have been raised by the applicant in PRES 3-6 of 2008, PRES 7 of 2008, PRES 2 of 2009 and/or PRES 5 of 2009.
134 Charge 12 alleges in PRES 3-6 of 2008 that it was proved that the CFMEUW failed in its duty to keep records of general meetings.
135 In charge 13, the applicant alleges the CFMEUW instructed their lawyer to obstruct a book inspection that was carried out on 26 August 2009. The book inspection had been sought to obtain evidence of membership records to be used by the applicant in prosecuting his case in PRES 5 of 2009: see discussion in the interlocutory application made by the applicant in this matter in Mcjannett v Construction Forestry Mining and Energy Union of Workers [2012] WAIRC 00291; (2012) 92 WAIG 507.
136 In charge 44, the applicant alleges that since the registration of the CFMEUW in September 2001, Mr Reynolds and Mr McDonald conspired to keep the truth about the CFMEUW and its assets from the members and work to dupe the members into thinking that there was only one federal union that owned everything. In the further and better particulars provided by the applicant in respect of this charge, apart from an allegation about the BTA, the essence of the particulars contend that the CFMEUW and the federal union were run as one and the funds were controlled by one single entity.
137 Acting President Ritter dismissed PRES 5 of 2009 on grounds that the applicant was seeking to litigate issues that were decided in PRES 3-6 of 2008. In PRES 5 of 2009, the applicant argued the electoral roll in the 2008 election included people who ought not to have electors as they were not properly enrolled as members of the CFMEUW. The CFMEUW made an application to summarily dismiss the application on three grounds: Mcjannett v Reynolds [2009] WAIRC 01282; (2009) 89 WAIG 2395 [8] (PRES 5 of 2009):
(a) The argument of the applicant in the substantive application, if accepted, leads to the conclusion that he is not a member of the CFMEUW. At the same time however he makes this application under s66(1)(a) of the Act on the basis that he is a member of the CFMEUW. It is submitted that the applicant should not be allowed to 'approbate and reprobate'. Accordingly the application should be dismissed.
(b) The application involves an attack on the findings I made in Thompson v Reynolds. Accordingly, it is an abuse of process to seek to re-litigate the issues there decided.
(c) As an alternative to (b), it is argued that the application is an abuse of process of the type described by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. This is usually referred to as Anshun estoppel. The CFMEUW asserts that, if the matters which the applicant now wishes to argue were not decided in Thompson v Reynolds, it was unreasonable of him not to have then raised them. Accordingly the applicant should not now be permitted to proceed with the substantive application. The applicant applied to become a party in Thompson v Reynolds, but after that application was stood over during most of the course of that proceeding, it was ultimately dismissed with the consent of the applicant. I will later set out additional details of this.
138 Acting President Ritter upheld the first two arguments, but had difficulties with the third argument. In respect of the first argument, he found [100]:
I also accept this contention. It would be pointless to proceed with an inquiry under s66 of the Act in which an applicant in effect asserts that they are not a member of the subject organisation when they rely upon that membership to have standing to bring a s66 application in the first place. If, as the applicant asserts, he has become a member of the CFMEUW unlawfully and he does not want to be, then his remedy is simple. He can resign his membership of the CFMEUW.
139 As to the second argument, Ritter AP found that the effect of his decision in Thompson v Reynolds was that the persons who voted in the 2008 elections were properly enrolled to vote. At [107] he held:
As to the membership form issue, that was determined in Thompson v Reynolds. As I have said earlier, I there held that a person signing the joint application form, albeit it was not in the form of the schedule to the rules of the CFMEUW, could nevertheless become a member of that organisation as well as the CFMEU. Based on my reasons in Thompson v Reynolds, the CFMEUW was entitled, and indeed required by those reasons, to treat people who had signed a joint application form or card as members of the CFMEUW. Accordingly, if financial they were entitled to vote and ought to have been included on the electoral roll.
140 Acting President Ritter then said [115] – [118]:
115 As earlier set out, in Thompson v Reynolds I decided that a person signing the joint application form and paying membership contributions, believing that was all that needed to be done to join and maintain membership of both the CFMEU and the CFMEUW, was and continued to be a member of both organisations. I did not consider in Thompson v Reynolds a situation which is agitated in the present case, of a person not intending to become a member of the CFMEUW by the signing of the joint application form and the payment of a single contribution. Despite not deciding that issue in Thompson v Reynolds, there is in my opinion no public interest in litigating it in the present proceeding, for the reasons I have earlier outlined. That is, there is no realistic prospect or evidence that a person who voted in the 2009 CFMEUW election did not thereby reaffirm their membership of, and show their intention to be, a member of the CFMEUW.
116 I also accept that I did not expressly consider, in Thompson v Reynolds, the validity of a signed joint application form not being witnessed, or that the joint application form did not say the CFMEUW was registered under the Act. These points do not however change my opinion that a person could validity become a member by the signing of the joint application form. The witnessing of a prospective member's signature, whilst an understandable requirement of rule 10, is to large extent a technicality. I do not think the intention of the rules is to omit a person from being a member if this requirement is not satisfied. I have the same opinion about the joint application form not saying that the CFMEUW was registered under the Act. Both the CFMEU and the CFMEUW are mentioned in the heading to the joint application form and cards. It would be open for a prospective member to make an enquiry about the act of parliament under which the organisations were registered, if they wished to do so.
117 I add that my finding in Thompson v Reynolds does not mean that the CFMEUW should not require new members to fulfil the requirements of rule 10 and sign a form in accordance with the schedule. This should have occurred in the past and should occur in the future. Additionally, even if a joint application form was used it should not have referred in its body to a 'union' singular. This was symptomatic of the way in which the CFMEUW was wrongly not administered separately from the CFMEU. My conclusion in Thompson v Reynolds was simply that, despite the deficiencies of the joint application form, its signing could nevertheless lead to valid membership.
118 I do not accept the applicant's argument that before a person could become a member of the CFMEUW, the organisation needed to specifically inform them that this was a separate organisation to the CFMEU, operated in a different jurisdiction and 'point' them to the rules of the CFMEUW. There is nothing in the rules of the CFMEUW or the Act which requires this to occur. The joint application form and the tabled cards are addressed to both the CFMEUW and the CFMEU. New members could have sought clarification about what this meant if they so desired. A person, when or after signing the form or card, could also have requested a copy of the rules of the CFMEUW if they wanted one. The signing of the application form was, and could be taken by the CFMEUW to be, the manifestation of an intention to join both organisations. This argument does not in my opinion constitute a claim that an irregularity has occurred in connection with the 2009 CFMEUW election, because people may have voted who were not entitled to.
141 In PRES 5 of 2009, Ritter AP did, however, reject an argument made on behalf of the CFMEUW that the applicant should be prevented from litigating particular issues on grounds of abuse of process because it was unjustifiably unreasonable of him not to have sought to litigate them in PRES 3-6 of 2008. In making this finding, Ritter AP said [135] – [139]:
135 The course of an election inquiry under s66 of the Act does not solely depend upon the conduct of the parties and the issues which they wish to raise. Thompson v Reynolds is a good example. There, because of the evidence which emerged, the inquiry became broader than the claims of the applicants. An inquiry is not therefore inter partes litigation (King v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Victorian Branch (2000) 109 FCR 447 per Gyles J at [54], citing Finkelstein J in Re Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Victorian Branch (2000) 99 IR 224 at [24]-[26]; Ex Parte Ferguson at 494).
136 Given these considerations, I have some difficulty in readily applying the Anshun principle to election inquiries under s66 of the Act. If there was a good reason to inquire into whether there had been an irregularity in connection with an election, I do not necessarily think that the inquiry should not proceed because a party, proposed party or intervener to an earlier inquiry had unreasonably not then raised the issue. It would in my opinion ordinarily remain the responsibility of the Commission to ensure that the election of offices in a registered organisation occurred without irregularity.
137 The application of the Anshun principle involves an evaluative judgment (Spalla at [64]-[65] and Habib at [82]). The evaluative judgment will take into account all of the facts and circumstances, including the unreasonableness of the prior conduct, the nature of the litigation and issues sought to be litigated and the degree of oppression to the other parties to the litigation.
138 In the present case such an evaluative judgment is unnecessary because, as I have set out earlier, the application does not raise any substantive issue of an irregularity which should be considered by the Commission.
139 If I were to undertake such an evaluative judgment, I would accept that there has been some unreasonableness in the way in which the applicant has conducted himself. The issue of whether he had become a member of the CFMEUW without his knowledge, intent and agreement could have been raised by him in Thompson v Reynolds. As stated he was aware that issues of membership were to be considered and the importance of the terms of a membership card to that issue. The applicant has asserted that, at that time, he did not have evidence from other 'members' of the CFMEUW which he could have led. Whilst that might be so, the applicant could have raised the issue with me and I could have made directions allowing the applicant to gather the relevant evidence.
142 Acting President Ritter was of the opinion that the power of the President to review matters in an election inquiry was not inter partes and should not be restricted as it is the responsibility of the Commission to ensure that the election of offices in a registered organisation occurred without irregularity. However, the matters raised in this application cannot invoke the jurisdiction of the President to inquire into an election. Inquiries into the 2008 elections have been completed. There is no scope to hold any further inquiry into those elections. Also, unlike the application in PRES 5 of 2009 the nature of this application is inter partes and as such the principle in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 is applicable. It is now clearly unreasonable for the applicant to attempt to raise any issue that has been previously determined in matters that arose out of the 2008 election of officers of the CFMEUW or raise any matter that could be said to relate to the 2008 election when almost four years has passed since the election was concluded. Any issue now sought to be raised in relation to the 2008 election is now moot as the Full Bench issued a s 71 declaration on 21 December 2011: [2011] WAIRC 01169; (2011) 92 WAIG 11, which then enabled the Registrar on 22 December 2011 to issue the following s 71 certificate (exhibit 1, tab 80):
I, the undersigned, Registrar of the Western Australian Industrial Relations Commission, acting pursuant to section 71(5) of the Industrial Relations Act 1979, hereby declare -
(1) that the provisions of the Industrial Relations Act 1979, relating to elections for office within an organisation do not from 9 January 2012 apply in relation to offices in The Construction, Forestry, Mining and Energy Union of Workers; and
(2) that from 9 January 2012 the persons holding office in the Construction and General Division, Western Australian Divisional Branch of the Construction, Forestry, Mining and Energy Union, an organisation registered under the provisions of the Fair Work (Registered Organisations) Act 2009 shall for all purposes, be the officers of The Construction, Forestry, Mining and Energy Union of Workers.
143 For all of these reasons, charges 11, 14 and 44 will be struck out on grounds of abuse of process.
144 As to charge 12, there is nothing alleged in charge 12 that raises an allegation that since the delivery of the reasons for decision in PRES 3-6 of 2008 in Thompson v Reynolds on 23 January 2009, that the CFMEUW has not kept minutes of general meetings. In any event, there was no finding in PRES 3-6 of 2008 that no minutes were kept of general meetings; it was simply found that joint meetings of the CFMEUW and the CFMEU Branch were held which was not contemplated in the rules of the CFMEUW: Thompson v Reynolds [127](f) and [175]. For this reason, charge 12 will be struck out on grounds that it does not disclose a breach of the rules of the CFMEUW and is an abuse of process.
145 The facts alleged in charge 13 also have no contemporary relevance to the observance of the rules of the CFMEUW and are matters that should have been raised in PRES 5 of 2009. In reasons for decision delivered on 10 May 2012, I made the following observations about this charge: [2012] WAIRC 00291; (2012) 92 WAIG 507 [37]:
In this matter the applicant argues that as no issue of obstruction was raised in PRES 5 of 2009, ergo, it cannot be said that charge 13 is an attempt to relitigate an argument. However, the difficulty with seeking to raise the matters referred to in charge 13 at this time, is that such an allegation is not only stale, but if it was to be seriously raised, the allegation should have been properly and squarely pressed in PRES 5 of 2009. As it is apparent from the applicant's affidavit and the reasons for decision in PRES 5 of 2009 the purpose of the request by the applicant to inspect records in 2009 was to obtain evidence to support his application in PRES 5 of 2009. As that matter was concluded over two years ago, it is difficult to see how there would be any purpose in now seeking compliance with that request.
146 For this reason, charge 13 will also be struck out on grounds of abuse of process.
147 The CFMEUW also argues that charges 16, 17, 23, 26, 27, 28, 35, 36, 43 and 45 should also be struck out on grounds of abuse of process as each matter has been previously litigated.
148 In charges 17 and 35, the applicant alleges the secretary forged membership records of the CFMEUW in order to gain transitional registration of the CFMEUW with Fair Work Australia. When regard is had to the further particulars of charges 17 and 35, the basis of the allegation arises out of a contention by the applicant that at the time of the 2008 election period the CFMEUW had no bona fide enrolled members and that what had been filed was a record of members of the CFMEU Branch. This contention cannot be made out. This is an issue raised by the applicant in PRES 5 of 2009 and squarely rejected.
149 Charge 35 also raises an allegation that Mr Reynolds deliberately avoided the legal steps to obtain a s 71 certificate under the Act. As the CFMEUW points out in their written submissions filed on 30 April 2012, this part of the charge raises an issue that is moot and is embarrassing. A s 71 certificate was granted on 22 December 2011 despite the applicant's unsuccessful attempt to intervene and oppose the making of a declaration under s 71 of the Act on 16 December 2011 that led to the grant of the certificate (exhibit 1, tab 76).
150 For these reasons, charges 17 and 35 will be struck out on grounds of abuse of process.
151 Charge 23 deals with action initiated by the CFMEUW against the applicant in 2010 under r 35 for alleged misconduct. In answers to the request for further and better particulars, the applicant says he raised relevant documents before the Commission in previous matters. However, as it is clear from an examination of all the documents in exhibit 1 that the allegations raised in this charge do not relate directly or indirectly to any relevant issue previously raised in prior litigation, I am not satisfied that ground 1 of the CFMEUW's grounds of objection is made out. This charge will be considered further when considering ground 2 of the CFMEUW's objections.
152 In charge 26, the applicant alleges Mr Reynolds siphoned levies, blackmail payments, bribes and other revenue. In charges 15 and 16, the applicant makes a similar allegation against the executive. In charge 27, the applicant alleges the CFMEUW paid its officials weekly cash payments without deducting taxation. In charge 28, the applicant alleges Mr Reynolds arranged a cash payment of $150,000 to the training centre through the use of covert surveillance, entrapment and blackmail. The CFMEUW says the applicant directly raised the allegations in these charges in 2008 in PRES 7 of 2008, but did not pursue the claims any further. In exhibit 1, tabs 18-24, documents filed in PRES 7 of 2008 record that the applicant made an application under s 66 of the Act for an urgent order and injunction to freeze all assets and records of the CFMEUW pending the outcome of the inquiry in PRES 3-6 of 2008. After an undertaking was given by Mr Reynolds on behalf of the CFMEUW not to destroy particular categories of documents, the application was discontinued by the applicant on 16 October 2008. When exhibit 1, tab 24, is examined it is apparent that allegations made by the applicant of misappropriation of funds and records in PRES 7 of 2008 were vague and were made at the time the applicant advised of his intention to discontinue PRES 7 of 2008. Consequently, I am not persuaded that the allegations in charges 15, 16, 26, 27 and 28 can be said to be an attempt to re-litigate issues raised in PRES 7 of 2008 as such statements were made at the same time advice was given to discontinue. For this reason, I am not persuaded that ground 1 has been made out in respect of these charges. Charges 15, 16, 26, 27 and 28 will be considered further when considering ground 2.
153 In charge 36, the applicant alleges the CFMEUW has a recorded history of using union resources against its members, particularly purging any member who has voiced dissent or stood in an election against incumbent officials. As examples of 'many', the applicant says he was purged, but then says in his answers and further and better particulars an attempt was made to purge him in 2010. He also contends in his answers, Mr Aitkin and Mr McParland were purged in 2000 and attempts were made to purge Mr Kavanagh, Wayne Wildes, Doug Heath and Kevin Ennor. Despite the request for particulars asking for details of members alleged to have been purged, no details other than names have been provided. In respect of this charge, the CFMEUW properly points out insofar as the charge relates to Mr McParland, it is clearly an attempt to re-litigate McParland v The Construction, Forestry, Mining and Energy Union of Workers [2002] WAIRC 06935; (2002) 82 WAIG 2894. In that matter, Mr McParland made an application under s 66 of the Act after the CFMEUW refused to accept the tender of a membership subscription. After hearing submissions and evidence from the parties, Sharkey P found Mr McParland was at the time of tender of the subscription no longer an employee and thus not eligible for membership of the CFMEUW. For this reason, I am of the opinion that insofar as part of the charge relates to Mr McParland it should be struck out for an abuse of process as any issue of 'purging' Mr McParland was dealt with by Sharkey P in 2002. I will consider the remaining matters alleged in this charge when considering ground 2.
154 In charge 43, the applicant alleges in APPL 31 of 2011 there are abundant documents showing serious breaches of the rules and the rule of law by Mr McDonald which has brought the CFMEUW into disrepute. Without some difficulty, it can be gleaned from the further and better particulars provided that the 'documents' referred to constitutes Mr McDonald's record of criminal convictions from 1994 to 2011. APPL 31 of 2011 was an application made under s 49J(2) of the Act for the re-issue of an entry permit to Mr McDonald. The applicant made an unsuccessful application to intervene in APPL 31 of 2011 and oppose the application (exhibit 1, tabs 65-67). The CFMEUW says the matters alleged in this charge are a clear attempt to re-litigate the matters in issue in APPL 31 of 2011. The difficulty with this contention is the reputation of the CFMEUW is a matter that could not have been reasonably raised in APPL 31 of 2011 as such a matter would be likely to have been irrelevant to any consideration as to whether Mr McDonald should have been re-issued a re-entry permit and thus is not a matter that could be said to be a matter that should, if seriously contended, have been reasonably raised in these proceedings. Consequently, ground 1 is not made out in respect of charge 43. I will, however, review charge 43 again when I consider ground 2.
155 In charge 45, the applicant alleges that on 23 March 2010, Mr McDonald addressed a large public rally in Perth and blamed union members employed at the Pluto Construction Project for an unlawful strike. The applicant says this constituted serious misconduct as the Federal Court later found Mr McDonald guilty of inciting the unlawful strike. The CFMEUW says this charge involves an attempt to re-litigate insofar as the issues were determined in Woodside Burrup Pty Ltd v Construction, Forestry, Mining and Energy Union [2011] FCA 949 which concerned the CFMEU Branch and not the CFMEUW and United Group Resources Pty Ltd v Calabro [2011] FCA 1408. In Woodside Burrup Pty Ltd, Gilmour J found that Mr McDonald had addressed a meeting of employees on 27 November 2009 at the Pluto Project and called for a motion for the employees to commence strike action if Woodside did not reverse its decision on modelling [34]. He also found on 30 November 2009, Mr McDonald informed a meeting of employees that they needed to decide whether they would prefer to go on a one, two, three or seven day strike. Mr McDonald later repeated a motion from the floor to take industrial action for 48 hours and called for a vote on that motion which was taken and passed [38]. The CFMEUW accepted it bore responsibility for the conduct of Mr McDonald [44].
156 In charge 45, the applicant attempts to raise the issue whether disciplinary action should have been taken against Mr McDonald as the applicant alleges r 35(1)(a), r 35(1)(g) and r 35(1)(i) of the rules have been breached. Leaving aside whether r 35 can be capable of contravention in the circumstances that are alleged, it is apparent from the reasons for decision in Woodside Burrup Pty Ltd that Mr McDonald was acting as an official of the CFMEU Branch and not the CFMEUW. Consequently, it cannot be said that any issue of re-litigation arises. Further, criminal proceedings and disciplinary proceedings are separate proceedings and no issue of double jeopardy can arise to bar disciplinary proceedings following the conclusion of criminal proceedings: Civil Service Association of WA Inc v Director General of Department for Community Development [2002] WASCA 241; (2002) 82 WAIG 2845 [52] (Anderson J). For this reason, ground 1 is not made out in respect of charge 45. I will, however, return to charge 45 when considering ground 2 of the grounds of objection.
157 In charge 18, the applicant alleges multiple breaches of various rules of r 3, including r 3(23) and r 10(1), r 10(2), r 10(3) and r 10(6). The matter alleged is that since 2001, the executive instructed officials not to collect entrance fees from thousands of members. The applicant contends that this conduct exposes the members of the CFMEUW to be ineligible to nominate for elections and forgo their rights to any privileges of bona fide members. The applicant also alleges that this conduct is a breach of r 8 of the national rules. As the CFMEUW points out, any issue whether there has been a breach of 'national rules' is not a matter within the jurisdiction of the President under s 66 of the Act. Although it is not apparent from the particulars provided by the applicant in respect of charge 18, it emerged during oral submissions made by the applicant that part of the evidence the applicant intends to rely upon to support this charge is a contention that evidence was given in PRES 3-6 of 2008 by Mr Reynolds and Ms Arnold that entrance fees had not been charged (ts 138-140). This contention is clearly wrong. In Thompson v Reynolds, one of the possible irregularities raised was whether entrance fees and contributions had been forwarded to and receipted by the CFMEUW [56](4)(b). Evidence was given on affidavit by Mr Reynolds in PRES 3-6 of 2008 that an entrance fee of $60 plus GST was taken as full payment for admission under both CFMEU and CFMEUW rules (exhibit 1, tab 17; [60] of the affidavit of Kevin Noel Reynolds). Following the 2001 amalgamation, the entrance fee was increased to its current rate of $60 at a meeting of the executive on 31 January 2001 (exhibit 1, tab 17; [82] of the affidavit of Kevin Noel Reynolds). There is no contrary evidence by Ms Arnold referred to by Ritter AP in Thompson v Reynolds. The only finding relevant to this issue that Ritter AP makes in Thompson v Reynolds is at [174] where he states that the CFMEUW had not been satisfactorily run and administered by Mr Reynolds and the executive as an organisation and independently from the CFMEU Branch. Acting President Ritter then identified at [175](b) that, among other matters, there had been a failure to set separate entrance fees and contributions. This finding did not, however, lead his Honour to find that the payment of one entrance fee and contributions resulted in ineligibility of any members to run for election. To the contrary he found there was no irregularity in connection with the 2008 election in respect of this issue [210]. The applicant contends that he does not entirely rely upon the evidence given in PRES 3-6 of 2008, but is in a position to call evidence from members of the CFMEUW who will give evidence that when they signed up to become a member they were told they would be given a discount and did not have to pay what the applicant says is the entrance fee (ts 140). He also says he did not have to pay an entrance fee. If the applicant's contention that such a practice had been occurring since 2001 and it resulted in members being ineligible to run for election, this is an issue that could have and should have been squarely raised in PRES 3-6 of 2008. One of the principal issues for consideration by Ritter AP in the inquiry into the 2008 election was as at 4 September 2008, were there any members of the CFMEUW, any members who were financial, or who were continuously financial and any members who were eligible to vote in the election [56](5)(a)(iii). The applicant sought to intervene in those proceedings, yet in his grounds of intervention he did not seek to raise such an issue. It is also a matter that he could have sought to raise this issue in PRES 2 of 2008 or in PRES 5 of 2009, and it is unreasonable for the applicant to now seek to raise this issue. For this reason, charge 18 will be struck out on grounds of abuse of process.
Ground 2 of the objections – Do the charges raise an allegation capable of proof of breach of a rule?
(a) Can the principal object rules of a union be capable of breach
158 This issue has been briefly considered in matters that have in the past come before the President under s 66 of the Act.
159 In Stacey, the applicant was employed by the Civil Service Association of Western Australia Inc (CSA). He alleged the CSA had breached r 3(c) of the rules of the CSA by failing to ensure he was properly represented or funded in an application against the CSA, in a claim for overtime. Rule 3(c) of the rules of the CSA provides that it was a principal object of the CSA to promote the interests of the membership by representing the industrial welfare of individual members.
160 Prior to Stacey being argued, in Wyatt v The Civil Service Association of Western Australia (Inc) (1997) 77 WAIG 3206 and Wauhop Sharkey P had held that an object rule of the CSA could not be breached. In making this finding, Sharkey P simply said in Wauhop [27]:
There could not be a breach of rule 3 because that is an 'object' rule. The 'object' rule directs the CSA to the objects which it is required to achieve in its activities and by its decision for its members.
161 In Singh v The Federated Miscellaneous Workers Union of Australia, WA Branch (1993) 73 WAIG 2674, Sharkey P found that an object rule of The Federated Miscellaneous Workers Union of Australia, WA Branch to provide funds to provide legal assistance for members in employment or industrial matters was not mandatory and that the rule could not mean that the union was bound to assist every person who applied for legal assistance (2677).
162 In Stacey, Ritter AP observed at [316] that the proposition that r 3(a) of the rules of the CSA could not be breached as it was an object, could be conceivably too broad in very unusual circumstances. His Honour, however, did not discuss the issue further. When he had regard to the proper construction of r 3(c) of the rules of the CSA, he found the facts alleged did not establish a breach of that rule. In particular, he found [309] – [313]:
309 The first problem facing the applicant is the nature and terms of rule 3(c). It is a 'principal objects' rule. Given that and the way the rule is drafted, the non-observance of the rule is not capable of being readily established. How can you prove an organisation is not following a principal object, particularly when it is simply the actions of the organisation with respect to one member that is brought before the President?
310 The structure of rule 3 is to firstly say that the principal objects shall be to 'protect and promote the interests of the membership' by what is set out as (a)-(c). It is implicit that (a)-(c) represents methods by which the interests of the membership are to be promoted.
311 The reference is to the 'membership' as a whole at this point and not individual members. Rule 3(c) does however refer to individual members and 'representing [their] industrial welfare'. The effect of the sub-rule is therefore that by the representation of the industrial welfare of members the interests of the membership as an object will be 'protected and promoted'.
312 This meaning of rule 3(c) is understandable, but the rule does not specify what activities constitute 'representing'. The rule does not require a particular standard of representation of all of the industrial welfare of each member to the extent considered to be appropriate by that member to satisfy the specified method of the carrying out of the object. The difficulty of setting a bar or standard of compliance in what is a broad motherhood type statement of intent shows the difficulty in proving an organisation is not acting in accordance with the rule.
313 In my opinion the CSA in deciding not to fully fund the applicant's legal costs in application 1215 and this application did not fail to act in accordance with this object. Not funding the applications of one member does not show the CSA was acting contrary to the purpose specified in rule 3(c).
163 For reasons that follow, similar considerations can be said to arise in the construction of r 3 of the rules of the CFMEUW.
(b) Interpretation of the rules of the CFMEUW
164 I also have doubts about the correctness of the brief observations made by Sharkey P in Wauhop that an object rule cannot be breached as it is an object. Whilst some object clauses may be drafted in such a way to create mere aspirations or be so broad and/or vague so as to be incapable of breach, other object rules may be more specific and could be capable of breach, depending upon the way the rule is drafted and the circumstances which are relied upon to establish a breach.
165 In analysing the interpretation of an objects clause in union rules, it is of assistance to have regard to the role of objects clauses in legislative instruments. The role of an objects clause in legislation is a statement of intention as to how an Act is to operate and is used as an aid to the construction of words of legislation: D C Pearce and R S Geddes, Statutory Interpretation in Australia (7th ed, 2011, LexisNexis Butterworths) [4.49]. However, like any other provision in legislation, an objects clause may be qualified by specific provisions contained in legislation: Statutory Interpretation in Australia [2.11]. Whilst the rules of a union are not legislative instruments, these principles are apposite. This does not mean that the rules of the CFMEUW should be interpreted strictly. They are not drafted by skilled draftsmen and are to be interpreted broadly and given a meaning consistent with the intention of the draftsmen: Hospital Salaried Officers Association of Western Australia (Union of Workers) v The Hon Minister for Health (1981) 61 WAIG 616, 618; Stacey [92] – [93], Delron Cleaning Pty Ltd v The Australian Rail, Tram and Bus Industry Union of Employees, Western Australian Branch [2004] WAIRC 12163; (2004) 84 WAIG 2527 [40]. To ascertain the intention of the drafters of the rules, regard should be had to the whole of the rules, including the objects.
(c) The rules of the CFMEUW
166 The rules of the CFMEUW do not prescribe many specific duties to be carried out by its officers. They do, however, establish a democratic structure of bodies who control the affairs of the CFMEUW whereby the supreme governing body of the union resides in monthly general meetings of members. Between these meetings the executive has the control and conduct of the business of the union.
167 Rule 1 sets out the name of the CFMEUW. Rule 2 names the registered office of the CFMEUW. Rule 3 of the rules sets out the objects to which funds of the CFMEUW are to be provided for and distributed and to activities the CFMEUW is to engage in. Rule 3 provides:
The objects for which the Union is established are, by the provision and distribution of funds, and by all other lawful means:-
(1) To uphold the right of organisation of labour, to improve, protect and foster the best interests of its members, and to regulate the hours of labour.
(2) To propagate the principles of industrial unionism, and to secure the establishment of same.
(3) To promote industrial peace by all amicable means including but not necessarily limited to conciliation, arbitration, collective and enterprise bargaining (including acting as bargaining agent).
(4) To assist in the movement for the socialisation of the means of production, distribution and exchange.
(5) To obtain and maintain just wages and conditions.
(6) To assist by federation or otherwise in upholding the rights and privileges of workers.
(7) To promote education and training in industry.
(8) To promote the rehabilitation and retraining of injured members.
(9) To promote education and training in relation to the retraining and redeployment of members affected by redeployment, redundancy or restructuring in industry.
(10) To manage and maintain a Union library.
(11) To promote equal opportunities for all workers.
(12) To promote consultation and co-operation between all representative and consultative bodies within the Union.
(13) To provide legal assistance in support of and in defence of members.
(14) To establish and maintain a newspaper and any other publication which might assist the Union.
(15) To assist members who are in distress through sickness, accident, unemployment or any other cause over which they have no control.
(16) To subscribe to testimonials or otherwise recognise services rendered to the Union.
(17) To make gifts to other labour organisations for bona fide charitable purposes.
(18) To affiliate with, amalgamate with, co-operate with, or assist any person or body which has any object similar to any of the objects of the Union, including obtaining certificates or entering into agreements pursuant to section 71 of the Industrial Relations Act (WA) 1979 as amended or like provisions, making applications pursuant to the provisions of section 72A of the Industrial Relations Act (WA) 1979 as amended or like provisions and entering into agreements with organisations registered pursuant to Commonwealth Industrial Relations legislation.
(19) To establish, where practicable, sub-branches or sections throughout Western Australia.
(20) To register the Union under any Commonwealth or State Trade Union, Industrial Arbitration, Co-operative or like Act.
(21) To exercise all available powers privileges and advantages provided under any Commonwealth or State Trade Union, Industrial Arbitration, Co-operative, Real Property or like Act.
(22) To purchase, take on lease, hold, sell, mortgage, borrow, exchange, invest, obtain interest on capital and donations, and otherwise acquire, own, possess and deal with any real or personal property including moneys.
(23) To raise funds from members by entrance fees, contributions, levies, other fees or fines.
(24) To secure the provision of reduced cost or free goods and services for members by way of marketing services or any other lawful means.
(25) To enrol in the Union all persons eligible to become members.
(26) To do all such other acts and things which are incidental to or which in any way relate to the carrying out of the above objects.
168 Rule 4 is the eligibility for membership rule. This rule is not material to the matters alleged in this application.
169 Rule 5, r 6, r 7, r 8, r 9 and r 10 provide for procedure for attaining membership, a register of members, payment of an entrance fee and membership fees, termination of membership and payment of outstanding fees, levies and fines.
170 Rule 11 empowers the CFMEUW at a special general meeting to strike a levy on all members. Rule 11 does not require a special general meeting to prescribe the purpose of any levy. However, when regard is had to the objects in r 3, in particular the statement that funds of the union are to be provided for and distributed for those purposes, it could be said that levies imposed under r 11 should be to further or advance any of the objects in r 3.
171 Rule 12 provides a general rule for the control of the property and funds of the CFMEUW. Rule 12 provides:
Subject to the control of the Union by General Meeting the funds and property of the Union shall be under the control of the Trustees. They shall be invested in the name of the Union by way of current account or on fixed deposit in the Commonwealth Savings or Trading Bank or such other bank, Building Society, Credit Union or other financial institution, or Government issued securities, or by way of investment in other securities or equities as the Executive may determine and notify to the Secretary.
172 Rule 12 simply nominates the trustees as the officers of the CFMEUW who are to control the funds and property of the CFMEUW. Insofar as r 12 creates a duty on the trustees, r 12 appears simply to be a 'machinery' clause for investment of funds and the holding of property. The determination of how funds are to be expended and property is to be acquired or expended ultimately resides with a general meeting: r 16(8).
173 Rule 13, r 14 and r 15 deal with financial reports and audit requirements.
174 Rule 16 establishes the offices of the executive of the CFMEUW which comprise a president, secretary, two assistant secretaries, senior vice president, vice president, treasurer, two trustees, and two ordinary executive members. Pursuant to r 16(7), subject to the control of general meetings, the executive has control and conduct of the business of the CFMEUW. Rule 16(8) restricts the power of the executive to expend funds on its own motion. Rule 16(8) provides the executive cannot expend funds of the CFMEUW other than for administrative expenses and current wages without approval of a general meeting.
175 Rule 26 requires a general meeting of members of the CFMEUW to be held once each calendar month. Notice of a general meeting to members can be given by various means, including in any journal issued by the union: r 26(1). A minimum number of members for a quorum of a special general meeting or ordinary general meeting is prescribed in r 26(6) to be 30 members.
176 The procedure to be followed for general meetings is set out in r 27.
177 Additional organisers can be appointed by the executive pursuant to r 17 and the executive can establish, abolish or alter sub-committees under r 18.
178 Rule 19, r 20 and r 21 provide for the appointment of delegates by the executive.
179 Rule 22 requires a member of the CFMEUW to inform workplace delegates of certain matters, that are not material to this application.
180 Rule 23 and r 24 prescribe the procedures to be followed for election of offices and casual vacancies of the executive and election of organisers.
181 The duties of the offices of the executive and organisers are prescribed in r 25. The role of the president and vice presidents is to preside over meetings of the CFMEUW: r 25(1). The role of the secretary appears to be substantially administrative, although the secretary is the principal spokesperson for the CFMEUW: r 25(2)(h). The trustees are to sign all cheques in conjunction with the secretary: r 25(5). Organisers and assistant secretaries are to assist the secretary: r 25(4) and r 25(6).
182 Rule 28 enables the executive to appoint any person or persons to represent the union in any court or tribunal.
183 Rule 29 empowers the secretary to recover all fees, fines, levies and contributions payable by members.
184 Rule 30 prescribes the seal of the union and r 31 requires the secretary to furnish returns to the Registrar of the Commission as required by the Act.
185 Rule 32 entitles a member to be supplied with a rule book (copy of the rules of the CFMEUW) upon request to the secretary and r 33 enables a member to inspect the books and register of members of the CFMEUW.
186 Rule 34 deals with procedures to be followed in industrial disputes and disputes between the CFMEUW and its members, or between members.
187 Rule 35 deals with offences of misconduct and penalties. The rule empowers the executive to determine whether a member is guilty of misconduct, the procedures to be followed when a charge of misconduct is laid and a procedure for appeal to a general meeting. As the applicant alleges that the CFMEUW has breached this rule, it is of assistance to set r 35 out in full. Rule 35 provides:
(1) Any member who:
(a) Fails to observe the rules of the Union or any of them;
(b) Knowingly fails to observe any resolution of a General Meeting or of the Executive;
(c) Fails to carry out or acts in contravention of any award, order or agreement binding on such member whether by or under any law of the Commonwealth or of the State in respect of work within the industry with which the Union is registered;
(d) Obstructs any Special or Ordinary General Meeting or Executive meeting, or any other lawful committee of the Union in any way in the performance of any of its functions;
(e) Wrongfully holds out as occupying any office or position in the Union or as being entitled to represent the Union in any capacity (to which charge it shall be a defence that the member believed bona fide on reasonable grounds that she/he was entitled so to act);
(f) Behaves in a drunken, disorderly or offensive manner at any meeting held under the Rules of the Union or in the office of the Union;
(g) Aids or encourages any other member in any misconduct under this Rule;
(h) Misappropriates the funds of the Union;
(i) Who is grossly neglectful of duty under these Rules;
is guilty of Misconduct.
(2) If the Executive finds any member guilty of misconduct it may:
(a) Reprimand such member;
(b) Fine such member a sum not exceeding the sum of one year's subscriptions for that member;
(c) Suspend such member for a period not exceeding twelve (12) months, or
(d) Expel such member.
(3) Any member of the Union may notify the Secretary that such member alleges another member is guilty of misconduct.
(4) The Secretary may request a notifying member to give such particulars of the alleged misconduct as are reasonably necessary.
(5) In the absence of notification from a member, the Secretary if he considers a member guilty of misconduct may act in accordance with this Rule.
(6) The Secretary shall give a member charged with misconduct written notice of the charge or charges giving sufficient details to give such member a reasonable opportunity to answer such charge or charges.
(7) The notice referred to in subrule (6) hereof shall be sent to the member at his registered address giving not less than twenty-one (21) days' notice of the meeting of the Executive at which such charge or charges will be heard.
(8) Should the charge or charges have been notified by a member of the Executive, such Executive member shall not participate in the consideration nor vote on such charge or charges.
(9) At the hearing, the Secretary shall prosecute and the member charged shall be given reasonable opportunity to answer the charge or charges.
(10) If a member is not present at the meeting at which the decision is given, the Secretary shall forthwith send to the member at his or her registered address, notification of the outcome.
(11) A member found guilty of a charge may appeal to a General Meeting from such finding or from any penalty imposed. Notice of appeal shall be given in writing to the Secretary within two (2) weeks of any decision being communicated to the member and shall set out in full all matters that the member desires to be considered.
(12) Such appeal shall be heard at the next General Meeting after such notice has been given or such other General Meeting as the General Meeting may determine, but in any event the appeal shall be heard within three months of the receipt of the notice of the appeal.
(13) For the purposes of these Rules the principles known as the 'rules of natural justice' or 'procedural fairness' shall be at all times complied with as far as is practicable.
188 Rule 36, r 37 and r 33 provide for procedures to be followed to alter the rules, amalgamate with another registered organisation of employees and dissolution of the CFMEUW. These rules are not material to this application.
189 The applicant's charges contend breaches of r 3 (objects), r 10 (payment of contributions, fees and fines), r 11 (levies and fines), r 12 (property and funds), r 14 (auditor's report), r 15 (presentation of financial report), r 33 (inspection of books) and r 35 (offences and penalties).
190 It is well established that a power conferred by a rule of an organisation may only be exercised by the recipient of the power for the purpose for which the power was conferred: Scott v Jess (1984) 3 FCR 263; (1984) 56 ALR 379; (1984) 8 IR 317; see the discussion in Stacey [325] – [331].
191 It is clear that when regard is had to the whole of the rules of the CFMEUW, that the objects set out in r 3 of the rules set the purposes the executive, each of the offices of the executive and the general meeting is to exercise when exercising their powers and functions. As there are no specific duties set out in the rules for the executive and the general meeting other than to conduct the business of the CFMEUW, the parameters of the 'business' of the CFMEUW can be said to be set out in r 3. I use the words 'business' and 'parameters' as r 3 does not in general provide specific tasks or functions, but simply provides broad aspirational goals. That does not mean that the executive or the supreme governing body (the general meeting) of the CFMEUW can act for a purpose outside the scope of r 3 as they must bona fide exercise their powers and functions in accordance with the objects in r 3. Of importance, is that the means undertaken in pursuit of the objects must be lawful. Notwithstanding this construction, some of the objects in r 3 are so vague so as to be incapable of breach by the executive, its members or a general meeting. For example, it is an object to assist in the movement for the socialisation of the means of production, distribution and exchange: r 3(4). Such an object is extremely vague. Other objects are so broad so as to be without qualification. In particular, r 3(22) provides an object for which the CFMEUW is established, is to purchase, take on lease, hold, sell, mortgage, borrow, exchange, invest, obtain interest on capital and donations, and otherwise acquire, own, possess and deal with any real or personal property including moneys. No precondition is prescribed for property to be acquired, dealt with or disposed of for a particular purpose. The only precondition is transactions other than for the payment of administrative expenses and wages must be approved by a general meeting: r 16(8).
192 Also of importance (as Ritter AP pointed out in Stacey at [310] – [311], in relation to an analysis of the object rule of the rules of the CSA), where the objects are directed at the membership how can it be proved a union is not following an object when it is simply the actions of an organisation with respect to one member. Whilst r 3 is cast in slightly different terms to the objects clause of the rules of the CSA, it is clear that each object in r 3 of the rules of the CFMEUW is an object directed to providing benefits to the members of the CFMEUW as a whole and is not directed to any particular individual member.
193 Even where an object in r 3 is capable of breach, whether a prima facie breach is evident on its face depends upon the circumstances that are alleged and the express terms of the object that is said to have been breached.
194 The CFMEUW contends that 92% of the charges fail to identify conduct capable of giving rise to a breach of the rules of the CFMEUW, or, alternatively, a CFMEU rule which is amenable to contravention.
(d) The charges
195 Charges 1, 3 and 4 arise out of the same alleged series of events arising out of the termination of employment of the applicant by Downer Energy Systems Pty Ltd in October 2006. In charge 1, the applicant alleges Mr Reynolds, Mr McDonald, Mr Hudston and the site manager of Downer Energy Systems Pty Ltd conspired to dismiss and blacklist him. Charge 3 alleges a refusal to mount a proper defence. Charge 4 repeats some of the allegations made in charge 1, in particular the allegation of conspiracy, and adds a claim that the CFMEUW misled the applicant during his request for a wrongful dismissal claim by stating they could not do anything about his termination of employment because of Work Choices. In each of these charges, the applicant alleges breaches of r 3. In respect of each charge, he alleges a breach of r 3(1), r 3(2), r 3(3), r 3(5), r 3(6), r 3(11), r 3(12), r 3(13), r 3(15) and r 3(21). In charge 1, a 'conspiracy' is alleged. Whilst each of these sub-rules are cast in general terms and create as Ritter AP described in Stacey [312] 'motherhood statements' and leaving aside whether actions against one member could constitute a breach of r 4, the conduct alleged, if proven, could, depending upon the circumstances found to be proven, be capable of establishing the object in r 3(1) 'to protect and foster the best interests of its members', if such conduct could be attributed to the CFMEUW itself, as a conspiracy to dismiss a member is an extreme example of conduct that is opposite to this object. For this reason, ground 2 of the grounds of objection has not been made out. However, the applicant simply makes a bare allegation of conspiracy against Mr Reynolds without providing any particulars of the conspiracy. He simply says in the answers to the request for particulars that all the requested particulars are held on file at the CFMEUW office and provides some vague particulars about the conduct of Mr McDonald in his answers to charge 4. These charges will be considered further when grounds 4 and 5 are considered.
196 In charge 2, another allegation of conspiracy is made by the applicant. The applicant contends in this charge that in or around October 2006, Mr Reynolds, Mr McDonald and Mr Hudston also conspired with the site manager of Downer Energy Systems Pty Ltd to blacklist Joshua Daley, the stepson of the applicant. In the answers to the request for particulars, the applicant says that at the time of the alleged event Mr Daley was not a member of the CFMEUW. In light of this particular, no breach of the rules could arise as there is nothing in the rules that raises any obligation to any person who is not a member of the CFMEUW. For this reason, charge 2 will be struck out on grounds that it does not identify conduct capable of giving rise to a breach of the rules of the CFMEUW.
197 In charge 5, the applicant alleges that when Mr McDonald was expelled from the ALP in 2007 after acting in a grossly offensive manner towards a construction manager, the CFMEUW and its members were brought in disrepute. This conduct is said to breach r 3(1), r 3(2), r 3(3), r 3(5), r 3(6), r 3(11), r 3(12), r 3(13), r 3(15) and r 3(21). Clearly this conduct cannot amount to a breach of any of these sub-rules as they do not create any obligation on any official of the CFMEUW to be a member of the ALP, or relate to the circumstances of retention of membership of a political party. For this reason, charge 5 will be struck out on grounds that it does not identify conduct capable of giving rise to a breach of the rules of the CFMEUW.
198 Charge 34 raises a similar issue to charge 5. In charge 34, it is alleged that when Mr Reynolds resigned from the ALP in 2007 in a brazen public display of animosity after his wife was expelled from the party, this brought the CFMEUW into disrepute. For the same reasons why charge 5 will be struck out, charge 34 should also be struck out.
199 Charge 31 also raises an issue that does not relate to the following objects in r 3(1), r 3(2), r 3(3), r 3(5), r 3(6), r 3(11), r 3(12), r 3(13), r 3(15) and r 3(21). Charge 31 alleges Mr Reynolds brought the CFMEUW into disrepute as he used his position to arrange a consultancy contract with Brian Bourke [sic] at great expense to the CFMEUW. The answers to the request for particulars in respect of this charge pleads a breach arises because it is not in the objects of the CFMEUW to employ a mate who has no experience in the construction industry. Such an allegation is vague and lacking in particularity. The engagement of a consultant would be regarded as an administrative matter for services to be provided. In the absence of any particulars that set out the work to be performed in the consultancy contract, it is difficult to see how a breach of r 3 could arise. What the applicant may be seeking to raise in this charge is that it is an implied term of the rules of the CFMEUW that appointments be free of cronyism or nepotism. However, as Ritter AP discussed in Stacey, there is no jurisdiction under s 66 of the Act to deal with any breach of an implied rule. For these reasons, charge 31 will be struck out on grounds that it does not identify conduct capable of giving rise to a breach of the rules of the CFMEUW and for want of particularity.
200 Charges 7, 8 and 9 raise complaints by the applicant about a 'failure' by the CFMEU to commence litigation in 2008 against ERMS Solutions for conducting an 'illegal blacklist'. In charge 39, the applicant alleges in 2011 the CFMEUW failed to mount a 'forthright defence' to an action in the Federal Court against the union in relation to the ERMS blacklist, which constituted a breach of r 3(1), r 3(2), r 3(3), r 3(5), r 3(6), r 3(11), r 3(12), r 3(13), r 3(15) and r 3(21). However, when oral submissions were made about this charge, the applicant stated that the CFMEUW was not a party to the proceedings in the Federal Court. Consequently, charge 39 cannot be capable of raising a contravention of r 3 and will be struck out.
201 Charges 7 and 8 allege that a motion was not allowed and debate was stifled about the blacklist at general meetings on 12 March 2008 (charge 7) and 9 July 2008 (charge 8) and this action constituted a breach of various sub-rules of r 3 and r 26(3).
202 Rule 26(3) provides:
All questions are to be decided by a majority of the members present, except where otherwise provided for. The Executive shall fix the hours of business, provided however that such meetings shall be of two hours' duration only and that no new business shall be conducted after the expiration of the two hour period and provided that the time of the meeting may be extended an extra fifteen minutes by a majority of the members voting for the purpose of finalising the business before the Chairperson.
203 Rule 27 sets out the procedure to be followed at a general meeting. Rule 27 provides:
(1) Order of Business
The Business at General Meetings of the Union shall, unless otherwise determined by the meeting in accordance with subrule (2) of this Rule, be conducted in the following order, namely:-
(a) Reading of the minutes of the previous General Meeting and their confirmation or disposal of in some manner;
(b) Executive reports for consideration and adoption;
(c) Notices of motion;
(d) Reception of delegates (if any);
(e) Financial report (if any);
(f) Reading, reception and consideration of General correspondence;
(g) Auditor's report (if any);
(h) Adjourned business;
(i) General reports for consideration and adoption;
(j) Questions and replies (no discussion thereon)
(k) Deputations; and
(l) General Business.
(2) Suspension of the Order of Business
It shall be competent by a vote of two thirds (2/3rds) of the members present for the meeting to suspend the Order of Business PROVIDED that the minutes of the previous meeting have been read and dealt with and PROVIDED that the effect of such suspension shall not be the rescission of any resolution previously adopted by the Union or the Executive.
(3) Notice of Motion to take Precedence
Any notice of motion shall take precedence in the order in which it stands in the Minute Book in relation to other similar notices, unless otherwise agreed to by the meeting in accordance with subrules (2) and (4) of this Rule and will lapse if the member who moved the motion or some member on his or her behalf be not present when the order of the day for such notice is read.
(4) Motion for Adjournment Cannot be Abrogated
When a motion for the adjournment of a debate to any stated night or time has been carried, such motion shall not in any way be abrogated unless with the consent of the mover of the motion for adjournment.
(5) Notices of Motion: How Given
Any member may, at any meeting of the Union or Executive, give notice of motion of a resolution to be discussed at a future meeting by handing the copy thereof to the President, who shall at once read it to the meeting.
(6) Adjournment of a Meeting
When a motion for the adjournment of a meeting has been carried, or the meeting adjourns through effluxion of time, the business then undisposed of shall have precedence at the next ordinary meeting after Executive reports have been dealt with unless otherwise agreed to in accordance with subrules (2) and (4) of this Rule.
(7) No Member to Obtain a Discussion, etc.
(a) No member shall be allowed to obtain a discussion on any subject through the medium of personal correspondence. All correspondence having reference to any matter that has been remitted to the Executive for consideration and report shall, for the time being, be deemed to be the property of the Executive as the case may be.
(b) Such correspondence shall, however, be read in open meeting at the time the report is presented, if any member so desire.
(8) Rules of Debate
Member Rising to Speak
(a) Any member desiring to speak shall rise in his or her place and address the Chairperson. If two or more members rise at the same time the Chairperson shall call upon the member who, in his or her opinion, first rose to speak.
Member to Resume his or her Seat
(b) Any member speaking shall at once resume his or her seat-
(i) If the Chairperson rises to speak; or
(ii) If a point of order be raised and shall not resume his or her speech until the point of order be decided.
Member to Speak only Once
(c) A member may speak only once upon any question before the meeting except-
(i) In reply to an original motion;
(ii) In explanation of or correction to some matter during the debate;
(iii) Upon a point of order raised during the debate; or
(iv) Upon a resolution being carried that 'he/she be now heard'.
Motions May be Amended
(d) A motion may be amended at any time during debate thereon by:
(i) Striking out certain words;
(ii) Adding certain words; or
(iii) Striking out certain words and inserting others in their place.
Amendment Becomes the Motion
(e) Upon an amendment being carried it shall take the place of the original motion and may be further amended until a decision is arrived at.
Motions May be Superseded
(f) A motion may be superseded at any time:
(i) By another motion that it be discharged from the notice paper; or
(ii) By a motion that the next business be proceeded with is resolved in the affirmative.
No More Than Two Members to Speak
(g) Not more than two members shall speak in succession either for or against any question before the meeting and if at the conclusion of the second speaker's remarks no member rises to speak on the other side, the Motion or amendment shall be at once put to the meeting.
Time Allowed for Speaking
(h) The mover of any original motion shall be allowed five minutes to introduce it and, notwithstanding the closure motion 'that the question now be put' being carried, the member shall be allowed five minutes to reply. No member shall be allowed to speak for more than five minutes at any one time, unless a two-thirds majority of the members present (by resolution) agree to the time limit of any speaker being extended to such length as shall be specified in such resolution. The time limit for discussion on any one subject shall be half an hour.
Motions Cannot Again be Moved
(i) Any motion agreed to or rejected by the Union cannot again be dealt with unless a motion of recommittal is carried by a two-thirds majority of members present.
Motions: How Put
(j) The Chairperson shall put all questions in a distinct and audible voice to the meeting by asking the 'Ayes' to vote first and afterwards the 'Noes', and shall declare his or her opinion as to which has the majority. Any seven members rising may demand a division when the Chairman shall take the vote by asking the 'Ayes' to go to the right and the 'Noes' to the left.
Motion to Disagree with Chairperson's Ruling
(k) When a motion to disagree with a ruling of the Chairperson has been duly proposed and seconded, the Chairperson shall leave the Chair until the motion has been disposed of by the meeting.
No Member to Speak
(l) No member may speak to any question after it has been put by the Chairperson, nor during a division, except to a point of order.
No Member May Vote
(m) No member shall be allowed to vote who was not present when the question was first put.
Members Must Vote on Division
(n) Every member present during a division must vote and his or her vote will be counted with the side on which he or she is sitting.
Adjournment of Debate
(o) A motion for the adjournment of the meeting or for the adjournment of the debate may be proposed at any time during such debate and shall be at once put to the meeting by the Chairperson, unless time be mentioned. When time is mentioned in a resolution for adjournment of the debate, the discussion shall be strictly confined to the question of time, and any amendment in connection therewith.
Interrupting Business
(p) Should any member strike or threaten to strike another member, or make use of obscene language, or come into the room in a state of intoxication, he or she shall be fined not less than $2.00 and not more than $20.00. Should any member refuse to be silent upon the call to order by the Chairperson he or she shall be fined not less than $2.00 and not more than $20.00 and such fine shall be first call on that member's subscription. No member shall be admitted to any meeting until such fines are paid. The fines referred to in this Rule may be summarily imposed by the Chairperson.
204 The CFMEUW points out that r 26 requires the procedure in r 27 to be complied with and that r 27(5) provides that a motion can only be raised in writing and read at a meeting and it is then to be considered at the next meeting. When regard is had to the provisions of r 27, it can be seen that the procedure for the order of business at a general meeting is mandatory, except where the order of business is suspended by a vote of two-thirds of the members present at a general meeting in accordance with r 27(2). It appears clear from the applicant's answers to the request for further particulars of this charge that when the applicant sought to raise a motion, he did not comply with the procedure in r 27(5).
205 The sub-rules of r 3 that are alleged to have been breached by this conduct in these charges are r 3(1), r 3(2), r 3(3), r 3(5), r 3(6), r 3(11), r 3(12), r 3(13), r 3(15) and r 3(21). As discussed previously, all of these sub-rules establish broad aspirational goals for the whole of the members of the CFMEUW. Whilst taking action on behalf of members generally against any organisation that compiles or maintains a blacklist may be said to be not consistent with those goals, it is difficult to see how the stifling of a debate about such a matter at a general meeting could be said to be a breach of any of the sub-rules of r 3 that are relied upon by the applicant. However, even if such a case could be made out, any debate of a motion at a general meeting must comply with the procedures set out in r 27 and compliance has not been pleaded. For these reasons, charges 7 and 8 will be struck out on grounds that these charges fail to identify conduct capable of giving rise to a breach of the rules.
206 Charges 9 and 10 also deal with the applicant's complaints about the blacklist. In charge 9, the applicant alleges Mr Reynolds wrote an ambiguous letter to him on 11 July 2008 enclosing a letter from Ms Helen Creed, WA Fair Employment advocate, in response to issues raised with her regarding ERMS. The applicant alleges the letter instructed Mr Reynolds to take his concerns about the blacklist to the federal jurisdiction and the CFMEUW did not do so. In failing to do so, the CFMEUW is alleged to have breached r 3(1), r 3(2), r 3(3), r 3(5), r 3(6), r 3(11), r 3(12), r 3(13), r 3(15) and r 3(21). In charge 10, the applicant alleges the same sub-rules of r 3 were breached when he wrote to the state executive pointing out the issues with ERMS and breaches of the rules and received no reply. As discussed, in respect of charges 7 and 8, it is difficult to see how the broad aspirational goals in r 3 could be construed to require the specific action the applicant alleges should have been taken. For this reason, I am not satisfied that charges 9 and 10 identify conduct that is capable of giving rise to a breach of the rules. Consequently, these charges will be struck out.
207 In charges 15, 16, 26 and 28, the applicant makes a number of allegations of misuse of union funds. In charge 15, the applicant alleges that r 11(1) and r 35(1)(h) were breached by Mr Reynolds and Mr McDonald who ordered multiple levies from 2001 to 2011 and did not advertise the purpose or ratify the levies in accordance with r 11(1). He also alleges cash was siphoned off and largely used for purposes other than that stated at the time of the imposition of the levies, which constitutes a breach of r 3(1), r 3(2), r 3(3), r 3(5), r 3(6), r 3(11), r 3(12), r 3(13), r 3(15) and r 3(21). The applicant also states this conduct amounts to possible offences against the Criminal Code and Crimes Act. However, when considering an application under s 66 of the Act, the President has no jurisdiction to consider or determine whether conduct amounts to a breach of any provision of any legislative enactment. The jurisdiction of the President under s 66 is confined solely to dealing with orders and directions relating to the rules of an organisation. Nor does the President have any power to inquire into whether offences have been committed under any enactment and refer any matters to prosecution authorities. Consequently, these reasons do not deal with any allegation made of a breach of any statutory enactment.
208 As to charge 15, there is no requirement in r 11(1) to advertise the purpose of a levy. It is the case, however, that only a special general meeting has the power to strike a levy under r 11(1). Consequently, the CFMEUW concedes that r 11(1) may be amenable to breach. This concession, in my opinion, is properly made as charge 15 alleges in part that the levies were not ratified in accordance with r 11(1). For this reason, ground 2 fails in respect of this charge. Charge 15 will be considered further when grounds 4 and 5 are considered.
209 In charge 16, the applicant alleges that since 2001 the executive did not seek authorisation from general meetings to take control of money derived from levies and donations away from the trustees. This conduct is said to be contrary to r 35(1)(a), r 35(1)(g), r 35(1)(h), r 35(1)(i), r 12, r 14(2) and r 15. One difficulty with this allegation is pursuant to r 16(1) the trustees form part of the executive. Charge 16 also contains an allegation contrary to those provisions of the rules that the CFMEUW failed to keep proper accounts in relation to levies, donations and bribes and submit those to the auditor and this also amounts to multiple breaches of r 3(1), r 3(2), r 3(3), r 3(5), r 3(6), r 3(11), r 3(12), r 3(13), r 3(15) and r 3(24). The applicant also alleges this conduct constitutes gross breaches of trust, criminal offences of stealing, fraud and misrepresentation to gain a benefit. In the answers to the request for particulars, it is alleged that the officers who committed the offences were Mr Hudston and a list of junior officials who are not named. It is clear that these allegations cannot amount to a breach of r 12, r 14(2) or r 15. Rule 14(2) simply requires the officers of the CFMEUW to provide the auditor with access to the books and documents of the CFMEUW and r 15 requires the secretary to provide a financial report to a general meeting after the receipt of the auditor's report. When regard is had to the allegations expressed in charge 16, it can be seen that non-compliance with the obligations in r 14(2) or r 15 is not alleged.
210 Although r 35(1)(h) creates an offence of misconduct for misappropriation of funds of the CFMEUW, the procedure for dealing with misconduct is by the executive under r 35(2). Whilst the conduct alleged in this charge by some of the members as individuals could constitute a breach of r 35(1)(i), r 35 only applies to the members as individuals and not to the CFMEUW as a body. In relation to the allegation that there was a failure to keep proper accounts constitutes a breach of the nominated sub-rules of r 3, there is no clear particularisation of conduct which could be said to be a breach of any object in r 3. Also, this charge does not contain sufficient particulars. In charge 16, the issue arises whether the applicant has pleaded with sufficient particularity breaches of:
(a) rule 35(1)(h) which creates an offence of misconduct for misappropriation of funds of the CFMEUW; and
(b) rule 12 is raised in that contained in this allegation is that funds and property of the CFMEUW have been under control of the trustees, in particular levies and donations as it is alleged that the executive did not seek authorisation from general meetings to take the control of money away from the trustees.
211 In respect of r 35(1)(h), only vague allegations of misappropriation of funds have been given and some of these allegations must be very old as the particulars state relevant allegations were made in the Cole Royal Commission. As to r 12, no particulars have been provided as to when the trustees have not had control of the funds of the CFMEUW. For this reason, charge 16 will be struck out on grounds that it fails to identify conduct capable of giving rise to a breach of the rules and on grounds of insufficient particularity.
212 In charge 26, the applicant states Mr Reynolds committed multiple breaches of r 3(22) and r 3(1), r 3(2), r 3(3), r 3(5), r 3(6), r 3(11), r 3(12), r 3(13), r 3(15) and r 3(21) by siphoning levies, blackmail payments, bribes and other revenue from small private enterprises from the CFMEUW cash stream to acquire massive personal portfolio of property, real estate and assets. In further and better particulars, the applicant says that without a proper book inspection the figure is unascertainable, but he estimates funds that have been missing from 1994 is between $5 million to $15 million. Among the property stated to have been acquired by Mr Reynolds is the 'union training centre'. This charge is defective in a number of material aspects. Firstly, any breach of a rule that raises such allegations, which are perhaps the most serious allegations that could be made against an officer of a union, should be properly particularised. Clearly, it is insufficient to make such vague allegations covering potentially a period of 15 years. Secondly, the documents annexed to the applicant's affidavit show the Construction Skills Training Centre is an association incorporated under the Associations Incorporation Act. Mr Reynolds, as chairman of the Construction Skills Centre, made an application under the Associations Incorporation Act to incorporate the centre (exhibit A, annexure D). These documents establish that Mr Reynolds is not the owner of the Construction Skills Training Centre. In any event, the allegations in charge 26 are made against Mr Reynolds and not against the executive of the CFMEUW or the CFMEUW. In these circumstances, even if any of the allegations could be made out, no allegation is made that the executive or the governing body of the CFMEUW, the general meeting, authorised any alleged misappropriation of any funds. For these reasons, charge 26 will be struck out on grounds that it does not identify conduct that is capable of giving rise to a breach of the rules and for want of particularity.
213 Charge 28 raises an allegation also raised in charge 26. In charge 28, it is alleged that in 1997 Mr Reynolds arranged a $150,000 payment to the 'union training centre' through the use of covert surveillance, entrapment and subsequent blackmail. This conduct is said to breach various sub-rules of r 3 and r 35(1)(a), r 35(1)(g), r 35(1)(h) and r 35(1)(i). This charge is also materially defective. The factual circumstances alleged cannot in law amount to a breach of the rules of the CFMEUW as it did not exist as an organisation in 1997. Also, this is a charge against Mr Reynolds personally. For this reason, charge 28 will be struck out on grounds that it does not identify conduct that is capable of giving rise to a breach of the rules.
214 In charge 19, the applicant alleges Mr McDonald has since 2001 knowingly and repeatedly committed criminal offences of assault and trespass, mostly whilst not being in possession of a right of entry. The applicant also alleges that the executive committed multiple breaches of r 3(1), r 3(2), r 3(3), r 3(24), r 3(26), r 35(1)(c), r 35(1)(g) and r 35(1)(i) by authorising the behaviour of Mr McDonald and authorising the payment of costs incurred by the repeated unlawful behaviour from members' funds. In the answers to the request for further and better particulars in respect of this charge, the applicant says Mr McDonald was acting in his capacity of assistant secretary of the CFMEUW and the CFMEU. This is said to be a gross departure of trust and accountability to members. He also pleads that the executive failed to curtail the behaviour of Mr McDonald. By this allegation, the applicant raises an argument that the authorisation by the executive of the payment of the defending criminal proceedings brought against Mr McDonald, the payment of fines incurred by Mr McDonald and a failure to curtail Mr McDonald's behaviour, was a breach of a fiduciary duty the executive owed to the CFMEUW and its members.
215 What the applicant appears to seek to argue in this charge is a breach of a fiduciary duty the executive owes to the members of the CFMEUW. Even if such a duty could be said to exist in these circumstances, it could only be implied duty. However, there is no power conferred under s 66 of the Act to enforce implied rules in a s 66 application: Stacey [308] – [335].
216 The applicant also argues through his particulars that as the executive failed to stop the behaviour of Mr McDonald, this constitutes a breach of trust. This allegation is also an attempt to argue that the CFMEUW through its executive breached an implied duty of trust, which is not a matter that is capable of enforcement proceedings under s 66 of the Act.
217 By payment of Mr McDonald's legal fees and penalties the CFMEUW is said to have breached r 3 and r 35. Whilst the fact of the relevant convictions relied upon by the applicant is sufficient to raise an allegation that Mr McDonald has engaged in unlawful conduct that has been found by various courts to constitute criminal conduct, it does not follow that this conduct by itself constitutes a breach of the rules of the CFMEUW itself. Firstly, r 35 only applies to a member of the CFMEUW as individual members, including officers of the CFMEUW, but not to the constituent bodies of the CFMEUW, that is the executive and the body of members that forms each general meeting. Mr McDonald is not the respondent to this charge, nor could he be, as a s 66 application can only be brought against an organisation registered under the Act.
218 The matters stated in charge 19 and the applicant's further and better particulars cannot, in my opinion, raise an arguable case that the CFMEUW has breached any of the identified objects of the CFMEUW in r 3. No rule is identified by the applicant that prohibits the payment of penalties or costs of an official who is charged and/or convicted of a criminal offence in circumstances where the conduct in question was committed by the official whilst acting as an employee or officer of the CFMEUW. To the contrary, r 3(23) contemplates that it is an object of the CFMEUW to raise funds from levies. Under r 11, the power to strike a levy resides with any special general meeting. The purpose for which levies can be prescribed is not provided for in the rules, other than it can be inferred from the word 'lawful' in the opening proviso to r 3 that any levy struck by a special general meeting must be for a lawful purpose to further or advance any of the objects in r 3. If levies were struck by a general meeting to fund the defence of prosecution action against Mr McDonald in respect of conduct committed by Mr McDonald in his capacity as assistant secretary of the CFMEUW, no unlawful purpose in the raising of those levies is pleaded by the applicant. Also, the applicant does not plead the levies were not struck by a special general meeting, but simply says Mr McDonald pleaded to the executive to authorise payment from the CFMEUW funds and arranged and participated in the collection of levies from the members. Yet there is nothing in the rules that prohibits that action by Mr McDonald. Nor does the applicant plead that a special general meeting struck a levy for a purpose that did not further or advance the objects in r 3.
219 The applicant also attempts to raise an argument that as the CFMEUW paid penalties and costs incurred by Mr McDonald with 'members' funds' this action removed a deterrent placed upon Mr McDonald by the courts and can be said to encourage recidivism by Mr McDonald. Whilst that may be a proposition that is capable of being accepted, it does not raise a breach of any of the rules of the CFMEUW.
220 In addition, it is difficult to see how the conduct alleged in charge 19 can be said to breach r 3(1), r 3(2) and r 3(3) when each of these objects simply create broad aspirational goals by lawful means and do not create specific obligations. Rule 3(1) creates a vague goal of:
(a) upholding the right to organise labour;
(b) improving, protecting and fostering the best interests of its members; and
(c) regulating the hours of labour.
221 Rule 3(2) is even vaguer. It creates a goal of propagating and securing the principles of industrial unionism. So, too, is r 3(3). This provision establishes the goal of promoting industrial peace by all amicable means, including but not necessary limited to conciliation, arbitration, collective and enterprise bargaining.
222 The objects in r 3(24) cannot be said to be relevant in any respect to the matters alleged in charge 19. Rule 3(24) creates a goal of securing the provision of reduced cost or free goods and services for members. Rule 3(26) is also not relevant. Rule 3(26) simply creates an incidental power to carry out acts and things that relate in any way to carrying out any of the objects in r 3.
223 For these reasons, the objection in ground 2 against charge 19 is made out. Charge 19 will be struck out on grounds that this charge fails to identify conduct giving rise to a breach of the rules of the CFMEUW.
224 Charges 43 and 45 duplicate in part the allegations alleged in charge 19. In charges 43 and 45 the applicant alleges breaches of r 3(1), r 3(2), r 3(3), r 3(5), r 3(6), r 3(11), r 3(12), r 3(13), r 3(15) and r 3(21) and breaches of r 35(1)(a), r 35(1)(g), r 35(1)(h) and r 35(1)(i) by Mr McDonald. No action can, however, personally lie against Mr McDonald under s 66 of the Act. In addition, the applicant has given no particulars of the serious breaches of rules of the CFMEUW in answer to the request for further and better particulars. Also, it is clear the alleged action taken by Mr McDonald in charge 45 was as an official of the CFMEU Branch not the CFMEUW. For this reason, charge 43 will be struck out on grounds that the charge fails to identify conduct giving rise to a breach of the rules of the CFMEUW and on grounds of lack of particularity. Charge 45 will be struck out on grounds that this charge fails to identify conduct giving rise to a breach of the rules of the CFMEUW and for want of particularity.
225 In charge 20, the applicant alleges contrary to r 3(13), Mr McDonald made a public announcement that the CFMEUW would not provide him (the applicant) with legal assistance when he was arrested in Bali on charges of importing drugs. Rule 3(13) provides that it is an object of the CFMEUW to provide legal assistance in support of and in defence of members. Whilst it is doubtful that r 3(13) can be relied upon to support an argument that a failure to provide legal resources to one member of the CFMEUW constitutes a breach, r 3(13) could only be properly construed as an obligation to provide support to members in respect of employment and industrial matters. The defence of drug importation charges in a foreign country is not such a matter. For this reason, charge 20 will be struck out on grounds that the matters alleged in charge 20 fail to identify conduct capable of giving rise to a breach of the rules of the CFMEUW.
226 In charges 21, 22, and 23, the applicant alleges the CFMEUW breached r 3(1), r 3(2), r 3(3), r 3(5), r 3(6), r 3(11), r 3(12), r 3(13), r 3(15) and r 3(21) whilst he was employed at the Collgar Wind Farm in 2010.
227 In charge 21, the applicant alleges a union official, Mr Hudston, delivered a negative newspaper article about the applicant to the site manager with intent to have a negative effect upon the applicant in his workplace. The CFMEUW requested particulars of the newspaper article, but no particulars were provided. Given that a newspaper article is by its nature a document that is published widely in the public arena, it is difficult to see how such conduct could be the subject of a complaint. In any event, such conduct does not appear on its own to have any connection with the objects relied upon in r 3. For this reason, charge 21 will be struck out on grounds that the conduct set out in this charge fails to identify conduct capable of giving rise to a breach of r 3 and for want of particularity.
228 In charge 22, the applicant complains that his subscriptions had been repeatedly refused to be accepted by Mr Hudston during the period of September 2010 to 6 December 2010 and when he complained he was told he had to apply to the executive to retain his membership. The applicant then paid his dues into the union bank account. Although it is not specifically pleaded in this charge, it appears common ground that the applicant retained his membership. In these circumstances, it is difficult to see how such conduct could be said to breach the nominated sub-rules of r 3. In any event, by operation of s 64B(1)(a) of the Act, when the applicant was in prison in Bali in 2009 and ceased to pay dues, at the end of three months from the period of expiry of payment of the last payment of dues his membership of the CFMEUW ceased. Section 64B(1) of the Act provides:
(1) Where — 
(a) a period in respect of which a subscription has been paid to an organisation for a person's membership of the organisation expires; and
(b) no subscription to continue or renew that membership has been paid to the organisation before, or within 3 months after, that expiry,
that membership ends by operation of this subsection at the end of that 3 month period.
229 In his answers to further and better particulars, the applicant states his membership dues were paid up until 30 March 2010. Consequently, pursuant to s 64B(1) of the Act, his membership came to an end on 30 June 2010. As at September 2010, when he was seeking to have membership dues accepted, his membership of the CFMEUW had expired and he had ceased to be a member of the CFMEUW. Pursuant to r 10(4) and r 10(5), the executive then had the right to decide whether a candidate for admission should be admitted as a member. For this reason, charge 22 will be struck out on grounds that the matters alleged fail to identify conduct giving rise to a breach of the rules of the CFMEUW.
230 In charge 23, the applicant complains about receiving two letters from Mr McCulloch advising he was going to be expelled for misconduct. The applicant requested particulars of the misconduct and received no response. He says this conduct constitutes a breach of r 35(2)(d) and r 3(1), r 3(2), r 3(3), r 3(5), r 3(6), r 3(11), r 3(12), r 3(13), r 3(15) and r 3(21). As no further action was taken by the executive against the applicant in respect of the allegations of misconduct a breach of r 35(2)(d) cannot be said to be raised as this provision simply empowers the executive to expel a member who it finds guilty of misconduct. As no finding of misconduct had been made, r 35(2)(d) has no application to the facts alleged by the applicant. Nor can any relevant connection with the facts alleged in this charge and the objects in r 3 be capable of being established as none of the objects in r 3 deal with the subject matter of alleged misconduct set out in r 35. For these reasons, charge 23 will be struck out on grounds that the facts alleged fail to identify conduct capable of giving rise to a breach of the nominated sub-rules of r 3 or r 35(2)(d).
231 In charge 25, the applicant alleges that Mr Reynolds instructed his son, Rod Reynolds, the union claims officer, not to progress a wage claim for a member, Mr Daley. Mr Daley is the stepson of the applicant. This conduct is claimed to constitute a breach of r 35(a) [sic], r 35(g) [sic] and r 35(i) [sic] and r 3(1), r 3(2), r 3(3), r 3(5), r 3(6), r 3(11), r 3(12), r 3(13), r 3(15) and r 3(21). Such conduct cannot constitute a breach of r 35 as the conduct alleged does not raise any defined ground of misconduct in r 35. Nor can such conduct constitute a breach of the nominated sub-rules of r 3. The only relevant sub-rule of r 3 is r 3(13) which provides that it is an object of the establishment of the CFMEUW to provide by the provision of funds and other lawful means legal assistance in support of and in defence of members. As Ritter AP pointed out in Stacey, in relation to a similar objects rule of the CSA which stated that a principal object shall be to 'protect and promote the interests of the membership', the intent in r 3(13) is to provide services to 'members', that is members as a whole and not to an individual member [311]. Consequently, not pursuing a wage claim on behalf of one member cannot show the CFMEUW was acting contrary to the object in r 3(13). For these reasons, charge 25 will be struck out on grounds that the facts alleged fail to identify conduct capable of giving rise to a breach of the nominated sub-rules of r 35 or r 3.
232 In charge 27, the applicant alleges that from 1995 to a date unknown, possibly 2012, the executive approved untaxed weekly cash payments to officials of the CFMEUW. This allegation is said to constitute federal offences under taxation law and multiple breaches of r 12, r 14(2), r 15, r 35(1)(a), r 35(1)(g), r 35(1)(h), r 35(1)(i) and r 3(1), r 3(2), r 3(3), r 3(5), r 3(6), r 3(11), r 3(12), r 3(13), r 3(15) and r 3(21). The applicant also alleges this conduct breached the rules of the BLPPU and the CMETSWU. It is apparent from the submissions made by the applicant that (ts 151):
(a) this allegation was investigated by the Australian Taxation Office who took no action.
(b) he seeks an inquiry under s 66 of the Act into whether such payments are still being made.
233 It is clear the President under s 66 of the Act has no power to hold an inquiry into any matter other than an election. Nor does the President have power to determine whether an offence under any law of taxation has, or could be, made out. Rule 12, r 14(2) and r 15 do not deal with the subject matter of cash payments. Consequently, these rules are irrelevant to the conduct alleged in this charge. Rule 35 is not applicable as the conduct alleged does not raise any defined ground of misconduct in r 35. Nor does there appear any relevant connection with the subject matter of alleged cash payments with any of the sub-rules of r 3 that are nominated by the applicant. For these reasons, charge 27 will be struck out on grounds that the charge fails to identify conduct capable of giving rise to a breach of the rules of the CFMEUW.
234 In charge 36, the applicant alleges the CFMEUW has a recorded history of using its resources to purge Mr Aitkin in or about 2000, attempts to purge the applicant in 2010 and Messrs Kavanagh, Wildes, Heath and Ennor on unspecified dates. This conduct is claimed to constitute a breach of r 3(1), r 3(2), r 3(3), r 3(5), r 3(6), r 3(11), r 3(12), r 3(13), r 3(15), and r 3(21). Whilst the circumstances of the 'purging' are not clear from the applicant's answers to the request for further and better particulars, it appears that it is alleged that the reason for the purging is retaliation from dissent or standing in elections. The difficulty with the subject matter of this charge is that apart from an absence of sufficient particulars, the conduct alleged has no specific or sufficient connection with the nominated objects in r 3 of the rules. For this reason, this part of charge 36 will be struck out on grounds that it fails to identify conduct capable of giving rise to a breach of the rules and for want of particularity.
235 A similar issue arises in respect of charges 37 and 38. The conduct alleged in these charges are also devoid of particularity and have no specific or sufficient connection with the objects in r 3. In charge 37, the applicant alleges that in February 2003, the Cole Royal Commission made a number of adverse findings against the 'union' and that since 2005 the actions identified in the findings have continued to occur 'showing the union officials still think they own the industry' and everyone working in it. The alleged actions identified by the applicant are:
(a) arranging the summary dismissal and blacklisting of himself and his stepson.
(b) the actions of Mr McCulloch during the 2008 election period and attacks upon the applicant in December 2010.
(c) the actions of official, Mr Brad Upton, on 1 February 2012 in threatening to blacklist a group of union members if they accepted a caravan deal on offer by Worsley Parsons.
(d) continuing refusals of the CFMEUW to keep proper accounts and issue receipts for levy money collected.
236 This conduct is said to breach each object in r 3 and breach r 35 which constitutes a serious departure from the objects and ethics of unionism and its rules. The principal deficiencies of this charge are a lack of particularisation of the matters alleged in (b) and (d) and an insufficient connection of the conduct alleged with the objects in r 3. What is the heart of this charge is a complaint about behaviour that is not consistent with the ethical standards expected of officers and employees of a union or the objects of the CFMEUW. Whilst ethical behaviour could be argued to be implied in the rules of the CFMEUW, it is not the subject of an express rule. As discussed earlier in these reasons, implied rules cannot be enforced by the President under s 66 of the Act. Although the applicant says that the conduct alleged in this charge breaches r 35, the action alleged in (a) to (d) above does not come within any of the specified categories of misconduct set out in r 35 and, in any event, r 35 only applies to the conduct of individual members of the CFMEUW. For this reason, charge 37 will be struck out on grounds that the charge fails to identify conduct capable of giving rise to a breach of the rules and for want of particularity.
237 The same considerations apply to charge 38. In charge 38, the applicant makes a general allegation that Mr Reynolds and Mr McDonald have a long documented history of threatening members and non-members in an angry violent fashion with the statement 'you will never work in the industry again' and the CFMEUW have used the ERMS blacklist to carry out these threats which is abhorrent. This conduct is said to breach r 3(1), r 3(2), r 3(3), r 3(5), r 3(6), r 3(11), r 3(12), r 3(13), r 3(15) and r 3(21). When asked for particulars of the threats, the applicant identified conduct in 2006. Leaving aside the issue whether this allegation is stale, the matters alleged are vague and devoid of sufficient particularity. If particularity is also left aside, it is also apparent that in the charge the applicant also seeks to identify non-ethical behaviour which could be argued to constitute part of an implied rule of ethics. However, the President has no power to deal with any breach of an implied rule. In any event, the conduct alleged in this charge does not have a sufficient connection with any of the nominated sub-rules of r 3. For this reason, charge 38 will be struck out on grounds that the charge fails to identify conduct capable of giving rise to a breach of the rules and for want of particularity.
238 In charge 46, the applicant alleges the executive and/or the trustees recently gave an expensive motor vehicle to Mr Reynolds when he retired and this action constituted a breach of r 12. Leaving aside the evidentiary issues raised in documents attached to annexure E of the affidavit of the applicant, as to the ownership of the vehicle in question, r 12 does not expressly prohibit gifts being made of property of the CFMEUW. Rule 12 simply provides that the funds and property of the CFMEUW shall be under the control of the trustees subject to the control of a general meeting. Although an argument may be capable of being made that it is implied in the rules that property of very substantial value should not be gifted (and I make no judgment about whether such an argument could succeed), the President acting under s 66 of the Act has no power to deal with a breach of an implied rule. For this reason, charge 46 will be struck out on grounds that it fails to identify conduct capable of giving rise to a breach of the rules of the CFMEUW.
Ground 3 – No jurisdiction; no standing
239 No jurisdiction arises under s 66 of the Act to deal with or to consider whether any statutory enactment has been or could be breached by the conduct alleged. However, as all of the charges that allege breaches of legislation also allege breaches of specific rules of the CFMEUW, this issue has been considered in these reasons when the other grounds of objection are considered.
240 I do not, however, agree with the submission made on behalf of the CFMEUW that the applicant does not have standing to bring an application in respect of events that are not within his personal knowledge or relate to events that concern other members or former members of the CFMEUW. To require an applicant under s 66 of the Act to show a sufficient interest in a particular subject matter would be to read down the scope of s 66(1) of the Act. Section 66(1) provides standing to make an application without any pre-condition to members, former members and persons who have applied for membership of an organisation.
241 Under s 27(1)(a) of the Act, the President, as a member of the Commission, has power to dismiss a matter. Section 27(1)(a) provides:
Except as otherwise provided in this Act, the Commission may, in relation to any matter before it — 
(a) at any stage of the proceedings dismiss the matter or any part thereof or refrain from further hearing or determining the matter or part if it is satisfied — 
(i) that the matter or part thereof is trivial; or
(ii) that further proceedings are not necessary or desirable in the public interest; or
(iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or
(iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, as the case may be;
242 This power to dismiss is subject to the pre-condition in the opening words of 'Except as otherwise provided in this Act'. Although s 27(1)(a)(iii) enables the dismissal of a matter where the person referring the matter does not have a sufficient interest, s 27(1)(a)(iii) is, in my opinion, rendered inoperative by s 66(1) of the Act which expressly confers power to make an application on specific categories of persons.
Ground 4 – Out of time and Ground 5 – Particulars
243 In Stacey, Ritter AP observed that there must be a contemporary connection between the conduct arising in a s 66 application and any orders or directions to be made. Thus, any corrective orders are limited to those that have a present connection with the activities of the organisation and its rules [272] – [273].
244 The CFMEUW contends there are only two charges that do not fail this temporal test, charges 39 and 46.
245 Although charges 2, 5, 7, 8, 9, 10, 16, 19, 20, 21, 22, 23, 25, 26, 27, 28, 31, 34, part of 36, 37, 38, 39, 43, 45 and 46 have also been found to be deficient on the basis of ground 2 and charges 11, 12, 13, 14, 17, 18, 35, part of 36 and 44 have been found to be deficient on the basis of ground 1, the CFMEUW says all of these charges should also be struck out as not having a temporal connection with the present activities of the CFMEUW and its rules. As I have already determined that these charges should be struck out, I do not intend to consider these charges further. I have also already found that charges 16, 21, 26, 31, 36, 37, 38 and 45 should also be struck out on grounds of want of particularity.
246 The charges that remain to be considered under this ground of objection are 1, 3, 4, 15, 29 and 30.
247 The applicant simply argues that the officials who were in control of the CFMEUW at the time the breaches of the rules occurred, are still in control of the CFMEUW today. When regard is had to the uncontested evidence in the affidavit of Ms Walker, such a contention cannot be entirely made out, as Mr Reynolds ceased to be the secretary on 21 December 2011, Mr Kucera ceased to be employed by the CFMEUW in June 2007, and Mr Wade ceased to be employed in July 2007. Even if the applicant's argument is accepted, many of the charges do not by the lapse of time appear on their face to have a temporal connection with the rules and the current observance by the CFMEUW of the rules and any orders and directions that could be made under s 66 of the Act. Also, many of the charges do not contain sufficient or adequate particulars.
248 The fundamental principle of how far further and better particulars should go to elucidate the nature of a claim for an opposing party was stated by Isaacs J in R v The Associated Northern Collieries (1910) 11 CLR 738, 740 – 741 as follows:
[T]he opposite party shall always be fairly apprised of the nature of the case he is called upon to meet, shall be placed in possession of its broad outlines and the constitutive facts which are said to raise his legal liability. He is to receive sufficient information to ensure a fair trial and to guard against what the law terms 'surprise,' but he is not entitled to be told the mode by which the case is to be proved against him …
[W]here I am in any doubt as to the sufficiency of the particulars I resolve it in favour of the defendants, so as to ensure their being in a position to fully understand and prepare for the case alleged against them. As Buckley L.J. said in G. W. Young & Co. Ltd. v. Scottish Union and National Insurance Co. (24 T.L.R., 73, at p. 74), 'the principle underlying particulars was that they were given in order to make the plaintiff's case plain';
249 Thus, an opponent to an action is entitled to know in advance, that is prior to a hearing, each and every material fact which the opponent relies. It is not sufficient as the applicant asserts when making oral submissions opposing the application to dismiss (ts 138) to allow him to call numerous witnesses to see what evidence emerges in support of the allegations he makes. This application cannot proceed as an inquiry as there is no power to hold an inquiry into whether any rules of the CFMEUW have been breached.
250 In charges 1, 3 and 4, the applicant raises allegations that arose from his dismissal in 2006 by Downer Energy Systems Pty Ltd. In charge 1, the applicant alleges Mr Reynolds and Mr McDonald engaged in a conspiracy with the site manager to dismiss him (the applicant). In charges 3 and 4, the applicant makes a claim that the CFMEUW did not mount a proper defence to his claim for dismissal. These charges are defective for two reasons. Firstly, it is doubtful that the rules of the CFMEUW could have any application to the conduct alleged in charges 3 and 4 as an unfair dismissal application would have been made on behalf of the applicant by the CFMEU Branch not the CFMEUW in the Australian Industrial Relations Commission. The CFMEUW had no standing to bring any application under the Workplace Relations Act 1996 (Cth) as it was not an organisation registered under that Act. Secondly, although Mr McDonald remains an official of the CFMEUW at this present time, the allegations in charges 1, 3 and 4 are stale. The events alleged in these charges are said to have occurred almost six years ago. In annexure K to the applicant's affidavit sworn on 18 May 2012 is a letter from an industrial officer of the CFMEU to the applicant dated 2 January 2007 in relation to Australian Industrial Relations Commission matter No U 2006/6536 (McJannett v Downer Energy Systems Pty Ltd) attaching a cheque for the sum of $1,489.60 and advice stating the amount is in full and final settlement of his unfair dismissal claim (exhibit B). In [60] of the applicant's affidavit he states that in 2009 he spoke to FWA lawyers at the office of David Vale in Sydney who, after reviewing his unfair dismissal case on the system, told him that the union should have made Downer Energy Systems Pty Ltd prove their claimed operational requirement (exhibit B). The applicant also states in his answers to the request for further and better particulars to charge 4, that prior to his dismissal he was warned by union members on site, that union officials were conspiring against him. He also states that following his dismissal he received a written statement from a former union official who says he heard Mr McDonald planning 'the event' from the union office. Despite this information being given to the applicant in 2006 and 2009, he did not seek to raise a complaint in this Commission until the filing of this application. Thirdly, even if these charges could proceed, they lack sufficient particularity of the alleged conspiracy to enable the CFMEUW to have sufficient knowledge of the case it would have to meet and prevent surprise at a trial of the facts and issues. For these reasons, charges 1, 3 and 4 will be struck out on grounds that the charges are out of time and the nature of the complaints are stale and lack sufficient particularity.
251 In charge 15, the applicant alleges a course of conduct has occurred by Mr Reynolds and Mr McDonald from 2001 to 2011 by ordering multiple levies and siphoning off cash collected to fund opulent lifestyles for union officials. As this charge alleges a course of conduct over a long period of time, perhaps it could be said that a contemporaneous connection between this charge and the rules of the CFMEUW arises, but whether any orders or directions could be made would depend upon the construction of any obligation in the rules to recover funds. In Schmid (No 1) a specific power was contained in the rules of The West Australian Locomotive Engine Drivers', Firemen's and Cleaners' Union of Workers for the executive to direct the general trustee to take legal proceedings against any officer or member guilty of misappropriating funds. The CFMEUW rules do not contain a similar power. Leaving this issue aside, this charge raises one of the most serious charges of impropriety that can be made against a union and its officials. In such circumstances, the CFMEUW is entitled to sufficient particulars of the conduct alleged so as to enable them to know with clarity the case they are to meet. Despite a request for relevant particulars, the answer given to the request is clearly deficient. In any event, it appears from the answers given to the request for particulars that what the applicant is seeking is an inquiry into the financial affairs of the officials of the CFMEUW and an audit of the books of the CFMEUW. However, the President has no power under s 66 of the Act to order an audit or any investigation. For these reasons, charge 15 will be struck out on grounds of insufficient particulars.
252 In charge 29, the applicant alleges Mr Reynolds and Mr McDonald attempted to bribe a candidate in September 2000 contrary to r 35(1)(a), r 35(1)(g), r 35(1)(h), r 35(1)(i) and r 12. This matter cannot be said to constitute conduct in breach of any rule of the CFMEUW as the CFMEUW was not a registered organisation in 2000. Even if s 72(5)(d) of the Act could be called into aid to raise an argument that an application could have been brought against the CFMEUW after the amalgamation of the BLPPU and the CMETSWU and formation of the CFMEUW in 2001, and thus an action under s 66 of the Act could be brought against the CFMEUW, this is a matter which is alleged to relate to an election which has long past. Under s 66(2)(e) and s 66(2)(f) of the Act, the President can only make orders in respect of an election in which it is alleged that there has been an irregularity. For this reason, charge 29 will be struck out on grounds of being out of time.
253 In charge 30, the applicant alleges Mr Reynolds, Mr McDonald and former official, Mr Wade, conspired to have a member of the CFMEUW assaulted at his workplace. The affidavit of Ms Walker establishes that Mr Wade ceased to be an employee and organiser for the CFMEUW in July 2007. Despite further and better particulars being sought, of among other matters, the date and place of the assault, the name of the member assaulted and details of the alleged conspiracy, no particulars have been provided. As no particulars of this charge have been provided, this charge will be struck out on grounds for want of particularity and on grounds the matters alleged are stale and thus have no contemporary relevance to the CFMEUW and its rules.
Remaining grounds of Ground 5 and Ground 6 – Public Interest
254 As I have found that all of the charges the applicant wishes to press should be struck out, it is not necessary for me to deal with the CFMEUW's argument that the majority of the charges are frivolous, vexatious, scandalous and not in the public interest. I will, however, deal further with this submission when I consider the CFMEUW's application for costs.
Conclusion
255 After considering the particulars provided by the applicant, in respect of each charge, I will make an order granting leave to the applicant to withdraw charges 6, 24, 32, 33, 40, 41, 42 and 47. I will also make an order to strike out charges 1 – 5, 7 – 23, 25 – 31, 34 – 39 and 43 – 46.
256 As those orders will dispose of all of the charges sought to be brought by the applicant, I now turn to consider whether the application should be dismissed or whether the applicant should be granted leave to re-plead all or any of the charges that he has not sought to withdraw. Clearly leave should not be granted to re-plead any of the charges dismissed on grounds of abuse of process (ground 1). These are charges 11, 12, 13, 14, 17, 18, 35, part of 36 that relates to Mr McParland and charge 44. My reasons make it clear that the matters alleged in these charges should not be litigated further.
257 As to the remaining charges, I am not satisfied that the applicant could re-plead the charges coherently and in a way that provides proper particulars. It is apparent from the submissions made by the applicant that what he seeks is an all-encompassing inquiry into the business and conduct of the CFMEUW over at least the last decade. Section 66 of the Act does not provide jurisdiction to hold such an inquiry.
258 It is also apparent that the applicant does not know what evidence will emerge if he is allowed to proceed and call the 29 witnesses he wishes to summons to appear and give evidence (ts 138). He argues that particulars of his case will emerge during a hearing. In light of this submission, the Commission can have no confidence that the applicant can properly re-plead his case.
259 For these reasons, I will not grant leave to the applicant to re-plead and will make an order to dismiss the substantive application.
Respondent's application for costs
260 The Commission is empowered with discretion to make an order requiring any party to a matter to pay costs and expenses other than costs allowed for the services of any legal practitioner, including expenses of witnesses as are specified in the order: s 27(1)(c) of the Act. In Brailey v Mendex Pty Ltd (1993) 73 WAIG 26, the Full Bench found that it is well settled in industrial law that costs ought not to be awarded, except in extreme cases, for example where proceedings have been instituted without reasonable cause.
261 The CFMEUW filed two bills of costs for the total sum of $1,388.84. The items contained in the bills are as follows:
Item.
Date
Description
Cost
Amount
1.
March 2012
Copying
11c per page
$109.56
2.
1 April - 4 April 2012
Copying
11c per page
$22.00
3.
February 2012
Telephone attendance
20c per call
$0.40
4.
March 2012
Telephone attendance
20c per call
$1.40
5.
1 April - 4 April 2012
Telephone attendance
20c per call
$0.80
6.
28 February 2012
Disbursements - payment for transcript

$62.70
7.
March 2012
Disbursements - files

$16.80
8.
March 2012
Disbursements - divides

$6.58
9.
April 2012
Disbursements - travel -taxi – fares

$53.65

$273.89

Item.
Date
Description
Cost
Amount
1.
30 March 2012
Disbursements - transcripts

$42.90
2.
April - June
Copying
11c
$192.28
3.
April - June
Telephone attendances
20c per call plus ISD rates at 22c per minute
$22.40
4.
8 April 2012
Disbursements - Courier

$15.75
5.
18 April 2012
Disbursements - transcript

$141.90
6.
May 2012
Disbursements - files

$18.90
7.
May 2012
Disbursements - divides

$51.61
8.

Disbursements - CDs

$1.04
9.
4 May 2012
Disbursements - law & order copying

$424.38
10.
June
Disbursements - travel - taxi fares

$203.35
Sub Total
$1,114.51
Plus subtotal from Bill of Costs filed on 4 April 2012
$273.89
TOTAL DISBURSEMENTS (as at 8 June 2012)
$1,388.84

262 Of the total sum claimed it can be seen that a large proportion of that sum is for the preparation of three arch level files containing tender bundles of documents under 103 tabs. These three files were tendered as exhibit 1 during the course of hearing of the CFMEUW's application to summarily dismiss the application. The documents that comprise exhibit 1 include copies of relevant applications, affidavits filed by the applicant, transcripts of proceedings and reasons for decision. These documents provide evidence of the history of litigation the applicant has engaged in against the CFMEUW and the CFMEU Branch since 2008. The preparation and tender of these documents was necessary to support the CFMEUW's grounds of objection, in particular ground 1.
263 It is also notable to consider the fact that the applicant, whilst unrepresented, is no stranger to litigation and has had a previous application summarily dismissed on grounds that the matters sought to be raised by him had previously been litigated (PRES 5 of 2009). After having been a party to that application, the applicant should have had some familiarity with the principles that apply to attempts to re-litigate matters. Yet the applicant is recalcitrant in his efforts to open, re-open and raise every possible vague allegation against the CFMEUW and its past and present officials.
264 Leaving aside many of the serious and unsupported allegations the applicant makes, it is obvious that the charges he has sought to put forward have been made in his quest for an all-encompassing inquiry into the CFMEUW. Such an inquiry is plainly not within the jurisdiction of the Commission under s 66 of the Act. In addition, he has in this application attempted to raise numerous matters that are either irrelevant to the observance of the rules of the CFMEUW. These include his arrest in a foreign country on drug charges and alleged non-compliance with unspecified statutory provisions such as 'taxation offences'. His lack of particularity appears to be borne from a speculative approach that once witnesses are called to give evidence a case against the CFMEUW will emerge. Such an approach is a clear abuse of the process of any litigation.
265 The applicant's attempts to re-litigate matters and to raise matters that have been disposed of many years ago or raise matters that are so old so as to be stale and have no contemporaneous connection with the current operation of the CFMEUW is clearly vexatious.
266 The defence of this application by making an application to strike out has put the CFMEUW to considerable expense because of the extent and breadth of the scope of the allegations made by the applicant. These costs are in the main largely unrecoverable as such costs are for the services of legal practitioners.
267 In my opinion, the CFMEUW's application for an order of payment by the applicant of costs in the sum or $1,388.84 is made out. The application, in my opinion, was instituted without reasonable cause. This factor, together with the fact that the efforts the CFMEUW has been put to in defending this matter because of the breadth and lengthy expanse of the applicant's allegations, puts this matter in the 'extreme' category of cases contemplated by the Full Bench in Brailey for the award of costs.
268 For these reasons, I will make an order that the applicant pay the respondent the sum of $1,388.84 for costs and expenses. Prior to making the order I will allow the applicant an opportunity to provide a submission as to whether he requires time to pay.