CITATION : 2008 WAIRC 01285 CORAM : THE HONOURABLE M T RITTER, ACTING PRESIDENT SENIOR COMMISSIONER J H SMITH COMMISSIONER P E SCOTT HEARD : MONDAY, 5 MAY 2008, TUESDAY, 6 MAY 2008, THURSDAY, 8 MAY 2008, FRIDAY, 9 MAY 2008, MONDAY, 12 MAY 2008, TUESDAY, 13 MAY 2008, TUESDAY, 3 JUNE 2008, THURSDAY, 5 JUNE 2008, FRIDAY, 6 JUNE 2008 DELIVERED : WEDNESDAY, 20 AUGUST 2008 FILE NO. : FBM 3 OF 2007 BETWEEN : IN THE MATTER OF AN APPLICATION BY THE WESTERN AUSTRALIAN PRINCIPALS' FEDERATION FOR REGISTRATION WESTERN AUSTRALIAN PRINCIPALS' FEDERATION Applicant AND STATE SCHOOL TEACHERS' UNION OF WESTERN AUSTRALIA (INC) Objector CatchWords: Industrial law (WA) - s53(1) application to register new organisation - objection based on validity - s55(4) - "in accordance with the rules of the organisation" - statutory interpretation - whether notice given in accordance with rules - applicability of Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 - adoption of rules - adequacy of constitution to establish inaugural council - whether elections to council in accordance with rules - adequacy of notice of special general meeting under rules of the organisation - standard of proof - applicant could not establish application for registration was authorised in accordance with rules - application dismissed. Legislation: Conciliation and Arbitration Act 1904 (Cth) Industrial Relations Act 1979 (WA) – s6, s53(1), s55, s55(1)(b), s55(2)(b), s55(4), s55(4)(a), s55(4)(b), s55(4)(e), s55(5), s56 Interpretation Act 1984 (WA) – s56 Workplace Relations Act 1996 (Cth) – Schedule 1B s19(1)(h) Result: Application dismissed 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1813 Representation: Counsel: Applicant :Mr A J Power (of Counsel) and with him Mr S Kemp (of Counsel) Objector :Mr M Bromberg SC (of Counsel) and with him Mr T Borgeest (of Counsel) Solicitors: Applicant :Jackson McDonald Objector :Slater & Gordon Case(s) referred to in reasons: Australian Education Union v Australian Principals Federation (2006) 158 IR 360 Australian Education Union v Lawler [2008] FCAFC 135 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Construction, Mining and Energy Workers Union of Australia, Western Australian Branch v The Operative Plasterers and Plaster Workers Federation of Australia (Industrial Union of Workers) Western Australian Branch (1990) 70 WAIG 281 Dargavel v Cameron [2002] FCA 1234 Luxton v Vines (1952) 85 CLR 352 McLure v Mitchell (1974) 24 FLR 115 Myer Queenstown v Port Adelaide (1975) 11 SASR 504 Nominal Defendant v Owens (1978) 22 ALR 128 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Re Australian Logging Federation (1978) 203 CAR 225 Re Electrical and Communications Association of Western Australia (2007) 87 WAIG 2899 Re Mirvac Ltd (1999) 32 ACSR 107 Re Postal Delivery Officers Union (Unreported, AIRC, Print S3192, 18 February 2000) State School Teachers’ Union of WA (Incorporated) v Director General, Department of Education and Training (2007) 87 WAIG 2548 Transport Industries Insurance Co Limited v Longmuir [1997] 1 VR 125 Case(s) also cited: Barter v Maher (1972) 21 FLR 10 Building Workers Industrial Union of Australia v Amalgamated Engineering Union (1952) 74 CAR 53 Conservative & Unionist Central Office v Burrell (Inspector of Taxes) [1980] 3 All ER 42 Federated Engine-Drivers and Firemen’s Association of Australasia v The Broken Hill Proprietary Company Limited (1911) 12 CLR 398 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Re Air Pilots’ Guild of Australia (1970) 133 CAR 65 Re Association of Computer Professionals (1976) 178 CAR 1032 Re Australian Licensed Aircraft Engineers’ Association (1962) 99 CAR 805 Re Macaulay’s Estate; Macaulay v O’Donnell [1943] Ch 435 Re Qantas Supervisors and Salaried Staff Association (1982) 2 IR 348 Re Qantas Supervisory and Salaried Staff Association (1983) 289 CAR 700 Re Society of Australian Surgeons (2003) 122 IR 447 Re State of Wyoming Syndicate [1901] 2 Ch 431 Ryan v Edna May Junction Gold Mining Co NL (1916) 21 CLR 487 Winter v McAdam (1957) 1 FLR 210 Reasons for Decision RITTER AP: The Application 1 The substantive application before the Full Bench is made pursuant to s53(1) of the Industrial Relations Act 1979 (WA) (the Act). The applicant seeks the authority of the Full Bench to become registered as an organisation of employees. The employees who comprise the applicant are in summary principals and deputy principals of state government schools in Western Australia. 1814 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. 2 The application was filed on 9 March 2007 and amended on 12 April 2007. The Applicant 3 The applicant contends it passed a resolution that its rules be comprised by a document entitled “Rules of the Western Australian Principals’ Federation” (exhibit J) at a special general meeting on 6 March 2007. In the rules the applicant is called the Federation. Rule 4 is as follows: “4. ELIGIBILITY FOR MEMBERSHIP (a) The Federation shall consist of persons in the following categories: (i) Principals employed or usually employed by the Department as Principals or Deputy Principals in Western Australian Government schools and colleges whether described or classified as Principal, deputy Principal, district Principal, associate Principal, assistant Principal, school administrator or executive (however such positions are otherwise described); and (ii) Any person elected to an office in the Federation.” 4 Rule 3 defines a “principal” in the following way: ““Principal” includes persons employed in the position of Principal, Deputy Principal, district Principal, associate Principal, assistant Principal, school administrator or executive (however such positions are otherwise described).” 5 The objects of the applicant are set out in rule 5 as follows: “5. OBJECTS The objects of the Federation shall be: (a) To promote and protect the interests of members in all matters relating to their employment; (b) To take the necessary action under any industrial or other legislation, or otherwise, for the purpose of securing improved industrial conditions with respect to the remuneration of labour, the hours of labour and other conditions of employment; (c) To represent members individually and collectively in negotiations with any relevant body, government, government department and before any authority or tribunals; (d) To promote co-operation between the Federation and all organisations representing the professional and industrial interests of members; (e) To facilitate the exchange of information and maximise cooperation between members employed in different sectors of State schools for the purposes of advancing their respective interests; (f) To increase and maintain the membership of the Federation; (g) To provide or obtain legal advice and, if necessary, legal representation for any member responding to or defending allegations which, if proved, may lead to disciplinary action against the member; (h) To act for and on behalf of members and, where determined by Council, non-members, in a manner consistent with these objects and the Rules and in the interests of members; (i) To do all such things as the Federation may from time to time deem incidental or conducive to the attainment of any or all of the above objects; and (j) To apply the property and income of the Federation solely towards the promotion of the objects and purpose of the Federation in accordance with the Rules.” The Objector and the Objection 6 On 17 May 2007 a notice of objection was filed by the State School Teachers’ Union of Western Australia (Inc) (the objector). In very general terms the basis of the objection was two-fold. Firstly that the application was invalid. Secondly and in the alternative the objector is a registered organisation whose rules relating to membership partly overlap those of the applicant and there is no good reason in accordance with s55(5) of the Act to permit registration. The fact of overlapping membership 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1815 rules has not been in dispute; the possible members of the applicant are a subset of the possible members of the objector. The dispute is about whether there is nevertheless “good reason, consistent with the objects prescribed in section 6, to permit registration” (s55(5) of the Act). The Course of the Application 7 For the present time at least, the merits of the application need not be considered. Due to the way the hearing unfolded the assertion of invalidity needs to be decided as a preliminary point. Despite the best efforts of the Full Bench to facilitate the issues being clearly articulated and an early and fulsome exchange of witness statements, documents and submissions, this has not occurred. It is regrettable. It has meant the hearing of the application has been delayed and somewhat disjointed. What commenced as a hearing of the merits and any objections to validity veered off part-way through the applicant’s evidence. At that point the objector filed particulars of its objections based on validity. This lead to an interruption to the evidence because of an adjournment, additional procedural directions being given, summonses’ to produce documents being issued to a number of people, including the applicant’s solicitor, the hearing of additional evidence about facts relevant to validity issues and lengthy closing submissions from counsel about validity. 8 It is not helpful at this point to try and assign “fault” for this but I do think it is very unfortunate and has not made for an economic use of the resources of the parties or the Full Bench. The Video Recording of the Proceedings 9 As is usual, the hearing before the Full Bench was both audio and video recorded by the use of the Commission’s FTR (For The Record) system. At the conclusion of the hearing I raised with counsel the issue of the Full Bench looking at the video record. Neither counsel urged the Full Bench to do so. I have not looked at the video record. In my opinion it would not have assisted my determination of the issues. There are also practical, procedural and substantive issues involved in viewing the video record. (See M T Ritter SC, ‘Video Recording of Proceedings – Issues for Consideration. The Opening up of Justice or Just a Can of Worms?’ Paper presented at the Australian Institute of Judicial Administration, Fourth Law and Technology Conference, Sydney, 27 June 2008, www.aija.org.au/Law&Tech%2008/Papers/ Ritter.pdf). In my opinion the lack of perceived value in looking at the video record together with these issues meant there was no point in doing so. The Applicant’s Case About Validity 10 The applicant’s case that the application was validly made relies upon the following series of events: (a) On 18 January 2007 there was a meeting of the inaugural members of the applicant. (b) At the meeting, inaugural office bearers and members of the council and the executive of the applicant were appointed by the members. (c) The members then adopted a constitution, later described and referred to as attachment B. It included in specified places the names of the inaugural office bearers and the members of the council and the executive. (d) On 20 February 2007 there was a meeting of the council of the applicant. (e) The council resolved to call a special general meeting for the purpose of making an application to the Commission for the registration of the applicant. (f) On 26 February 2007 and in accordance with the resolution and the constitution, notice was sent by email to the members of the applicant of a special general meeting on 6 March 2007, primarily to replace the constitution with the rules of the applicant and to authorise the making of an application to the Commission for registration. (g) The special general meeting was duly convened on 6 March 2007. The meeting authorised the replacement of the constitution with the rules and the making of the application to the Commission. The rules were as stated exhibit J. (h) A valid application to the Commission was filed on 9 March 2007. The Objector’s Contentions of Fact and Law 11 I will quote below the terms of the objections to invalidity. As an aid to understanding them I will set out the objector’s contentions about the facts and legal conclusions the applicant relies upon. In discussing the objector’s contentions and the alleged invalidities, for ease of reference I will often omit the use of the word “purported” in describing entities, documents, meetings, events and the like, where it would be strictly more accurate to do so. 12 The objector asserted: (a) At the meeting on 18 January 2007 the members of the applicant did not adopt attachment B as its constitution. Instead the members adopted exhibit E. This is later described. The two documents were materially different. (b) Exhibit E was adopted as the constitution before the appointment of the office bearers and the members of the council and the executive of the applicant. (c) After the adoption of exhibit E as the constitution, the office bearers and the members of the council and the executive of the applicant could only be elected in accordance with the constitution. This did not occur. (d) Due to (a)-(c) the meeting on 20 February 2007 was not a meeting of the council of the applicant as no validly appointed or elected council then existed. (e) Further or in the alternative even if council did exist on 20 February 2007 the meeting on 20 February 2007 was not a meeting of the council of the applicant but some different body or collection of people. 1816 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. (f) Due to (d) and/or (e) the meeting on 20 February 2007 was not a valid meeting of the council of the applicant. Accordingly the meeting could not validly resolve to call the special general meeting. (g) Further or in the alternative the meeting on 20 February 2007 did not authorise, in accordance with the constitution, the issuing of a notice in the form that was sent on 26 February 2007. Accordingly the meeting on 6 March 2007 was not a valid meeting of the applicant. (h) Further or in the alternative the notice sent on 26 February 2007 did not comply with what was required under the constitution. (i) Accordingly the special general meeting which took place on 6 March 2007 was not a validly called special general meeting. (j) Therefore the special general meeting on 6 March 2007 could not and did not validly authorise the replacement of the constitution with the rules or the application to the Commission for registration. (k) Further or in the alternative at the special general meeting on 6 March 2007 the members first resolved to replace the constitution with the rules. (l) Under the rules, the meeting of the members at the special general meeting did not have the power to authorise the making of the application to the Commission to seek registration. (m) For all of these reasons there was before the Commission no “application in accordance with the rules of the organisation”. Accordingly s55(4)(a) of the Act required that the Full Bench “shall refuse the application”. (I later set out the full terms of and discuss s55(4) of the Act). 13 The outcome of the objections to validity depends upon the determination of these disputed contentions of fact and law. For ease of reference I will refer to (a)-(m), in the previous paragraph as OC(a), or as the case may be, standing for “objector’s contention (a)”. The Particulars of Objections to Validity 14 The objector submitted the application was invalid because: (a) The special general meeting did not have power, under the rules, to authorise the making of an application for registration under the Act (“Alleged Invalidity 1”). (b) Only the applicant’s council could call a special general meeting and there was no council in existence on 20 February 2007 (“Alleged Invalidity 2”). (c) Even if there was a council in existence on 20 February 2007, the meeting on that date was not a meeting of council (“Alleged Invalidity 3”). (d) No authority was given by council to call the special general meeting on 6 March 2007 (“Alleged Invalidity 4”). (e) The special general meeting had not been called by a notice given in accordance with the applicant’s constitution (“Alleged Invalidity 5”). 15 The objector’s case was that each of the invalidities was an independent ground in that none of them depended on any of the others being established. The objector submitted the establishment of any one of the invalidities meant the application must be dismissed. The Link Between the Objector’s Contentions of Fact and Law and the Alleged Invalidities 16 The alleged invalidities and OC(a)-(l) link in the following ways: (a) Alleged invalidity 1 relies upon OC(k) and OC(l). (b) Alleged invalidity 2 relies upon OC(a)-OC(d). (c) Alleged invalidity 3 relies upon OC(e) and OC(f). (d) Alleged invalidity 4 relies upon OC(g). (e) Alleged invalidity 5 relies upon OC(h)-(j). 17 OC(m) was the outcome which the objector asserted would follow from the establishment of any of the alleged invalidities. The Statutory Framework 18 As previously stated the application is made pursuant to s53(1) of the Act. This reads as follows: “(1) Subject to this Act, any unregistered organisation consisting of not less than 200 employees associated for the purpose of protecting or furthering the interests of employees may be registered by authority of the Full Bench.” 19 Section 55 of the Act sets out requirements which an organisation seeking registration must comply with or attain. The requirements are technical, procedural and substantive. At present it is not necessary to set out the section in full. The objector’s submissions on invalidity in part relied upon s55(4) of the Act. This provides: “55. Requirements attaching to organisation seeking registration … 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1817 (4) Notwithstanding that an organisation complies with section 53(1) or 54(1) or that the Full Bench is satisfied for the purposes of section 53(2) or 54(2), the Full Bench shall refuse an application by the organisation under this section unless it is satisfied that — (a) the application has been authorised in accordance with the rules of the organisation; (b) reasonable steps have been taken to adequately inform the members — (i) of the intention of the organisation to apply for registration; (ii) of the proposed rules of the organisation; and (iii) that the members or any of them may object to the making of the application or to those rules or any of them by forwarding a written objection to the Registrar, and having regard to the structure of the organisation and any other relevant circumstance, the members have been afforded a reasonable opportunity to make such an objection; (c) in relation to the members of the organisation — (i) less than 5% have objected to the making of the application or to those rules or any of them, as the case may be; or (ii) a majority of the members who voted in a ballot conducted in a manner approved by the Registrar has authorised or approved the making of the application and the proposed rules; (d) in relation to the alteration of the rules of the organisation, those rules provide for reasonable notice of any proposed alteration and reasons therefor to be given to the members of the organisation and for reasonable opportunity for the members to object to any such proposal; and (e) rules of the organisation relating to elections for office — (i) provide that the election shall be by secret ballot; and (ii) conform with the requirements of section 56(1), and are such as will ensure, as far as practicable, that no irregularity can occur in connection with the election.” The Meaning of “Rules of the Organisation” in Section 55 of the Act 20 Section 55(1)(b) of the Act requires an organisation seeking registration under s53 to lodge with the Registrar, “3 copies of the rules of the organisation”. The same expression is also used in s55(2)(b), s55(4)(a) and (b), s55(4)(e) and s56. The requirement in s55(4)(a) is that the Full Bench shall refuse an application made under s55 unless it is satisfied that, amongst other things, the application for registration is “authorised in accordance with the rules of the organisation”. As a matter of statutory construction the expression “rules of the organisation” must have the same meaning in s55(1)(b) and s55(4)(a). The effect is that the application must be authorised in accordance with the rules which have been lodged with the Registrar as being the rules of the organisation. As expressed in s55(4)(a) of the Act if this does not occur the Full Bench “shall refuse” the application. The Meaning and Effect of Section 55(4)(a) of the Act - The Electrical and Communications Association of Western Australia (Union of Employers) (2007) 87 WAIG 2899 (Re Electrical Association) 21 The objector relied upon the construction of s55(4) of the Act contained in Re Electrical Association. In my reasons at [36], [38], [39] and [42] I said, with the agreement of Wood and Mayman CC: “36 Despite this however, in my opinion the terms of s55(4)(a) of the Act mandate that the present application must be refused. Section 55(4)(a) uses the words “shall refuse”. The use of “shall” imports in the 1818 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. context a requirement to refuse the application unless there is satisfaction in the terms described. This opinion is not inconsistent with s56 of the Interpretation Act 1984 (WA) and “The Wall and Ceiling Fixer’s Case”, a decision of the Industrial Appeal Court; Construction, Mining and Energy Workers Union of Australia, Western Australian Branch v The Operative Plasterers and Plaster Workers Federation of Australia (Industrial Union of Workers) Western Australian Branch and Another (1990) 70 WAIG 281 at 286. … 38 Section 55(4)(a) of the Act requires the Full Bench to be satisfied the application “has been authorised in accordance with the rules of the organisation”. In my opinion authorisation in accordance with the rules involves compliance with the process required by the rules to pass a motion to apply to alter the rules. This includes all aspects of the process including relevant notice requirements. 39 Put slightly differently, in the context of an application to alter the rules, s55(4)(a) of the Act requires the Full Bench to analyse and determine:- (a) What is required under the rules to authorise an alteration application. (b) What actions have been taken to purportedly comply with these requirements. (c) Whether compliance has occurred. … 42 Section 55(4)(a) does not however contain any scope for the Full Bench to be satisfied there has been substantial compliance with the authorisation process. This may cause a harsh result in a particular case and this is one of them. The terms of the legislation may however be inferred to reflect an intention that applications to alter the rules of an organisation should only be allowed if there is strict compliance with what the rules require. The contents of s55(4)(a) are part of the fairly tight supervisory role over the rules of organisations that the Commission is charged with by the Act.” 22 The observations at [39] were specific to the application to alter rules in Re Electrical Association. They apply however with necessary modifications to the present application. 23 The applicant did not attempt to persuade the Full Bench that the analysis of s55(4)(a) in Re Electrical Association was in error (T268). It contended that the facts in the present case were different from and did not lead to the same conclusion as Re Electrical Association. In short that was because the application was “authorised in accordance with” the applicant’s rules. The Applicability of Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 24 The applicant submitted Project Blue Sky supported the submission that not every failure to follow a prescribed procedure set out in the constitution or rules of the applicant rendered “an act a nullity”. It was submitted the “question to be asked is whether the purpose of the requirement requires that a failure to comply with the requirement renders an act invalid” (outline of submissions [5]). This was said to be supported by the application of Project Blue Sky in the Full Bench of the Australian Industrial Relations Commission (the FB AIRC) decision in Australian Education Union v Australian Principals Federation (2006) 158 IR 360 (The AEU Decision). 25 The proposition was not accepted by the objector. The objector submitted the applicant was using Project Blue Sky as if a “magic wand” which, if something had not been done in accordance with the constitution or rules, could be waved to cause the problem to disappear. 26 In my opinion what needs to remain at the forefront of consideration are the requirements of the legislation we are currently dealing with. These are set out in, relevantly, s55(4) of the Act. As explained earlier by reference to Re Electrical Association, the expression “shall refuse” is most significant. Adopting what was said in that case to the present, the processes dictated by s55(4)(a) comprise an analysis and determination of: (a) What is required under the relevant rules, to authorise an application to the Full Bench. (b) What actions have been done in purported compliance. (c) Whether compliance has occurred. 27 As I also said at paragraph [38] of Re Electrical Association the requirement for authorisation in accordance with the rules of an organisation includes compliance with the processes, including notice requirements, required by the rules. 28 Relevantly for present purposes, Project Blue Sky decided that whether a failure by an administrative body to act in accordance with the legislative preconditions to the exercise of its powers, meant that an exercise was therefore “invalid”, depended upon an assessment of whether that consequence was intended by the legislature. (See [91]-[100]). 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1819 29 I find it difficult to see that Project Blue Sky has much relevance to the present issues. They involve whether the applicant has acted in accordance with its rules. In Project Blue Sky the High Court decided that “[a]n act done in breach of a condition regulating the exercise of a statutory power is not necessarily valid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition” (per McHugh, Gummow, Kirby and Hayne JJ at [91]; and see also [93]). Their Honours then discussed how to discern the legislative purpose. 30 I do not see a connection between that reasoning and the present application. What the High Court said about the failure to act in accordance with legislative preconditions cannot simply be transposed into an analysis of the consequences of an organisation not acting in accordance with its rules in the present context. By s55(4)(a) of the Act the Full Bench is required to decide whether or not the application has been authorised in accordance with the rules of the organisation. If it has not then the application must be refused. There is no issue of ascertaining the intended consequence of a failure to follow statutory preconditions. Statutory preconditions are not in issue; authorisation in accordance with an organisation’s rules is. If this did not occur the Act mandates the consequence that the application “shall” be refused. 31 The applicant endeavoured to support its submissions about Project Blue Sky by reference to The AEU Decision. The Full Bench was informed that an application had been made to the Full Court of the Federal Court for the issue of a writ of certiorari to quash the registration decision. That application had been heard and reserved by the Full Court. There was at that time no indication of when the decision would be handed down. Since the hearing of the application however the Full Court did hand down its decision; Australian Education Union v Lawler [2008] FCAFC 135 (Lawler). I will comment on Lawler after referring to The AEU Decision. 32 In The AEU Decision the Australian Principals Federation (APF) applied for registration as an organisation of employees under schedule 1B of the Workplace Relations Act 1996 (Cth) (the WRA). The Australian Education Union (AEU) objected to the registration. Registration was granted at first instance by the AIRC. The AEU then appealed against the grant of registration to the Full Bench. 33 One of the objections to registration had been based upon s19(1)(h) of the WRA, Schedule 1B. This provided that: “19 Criteria for registration of associations other than enterprise associations (1) The Commission must grant an application for registration made by an association (other than an enterprise association) that, under section 18, may apply for registration as an organisation if, and only if: … (h) a majority of the members present at a general meeting of the association, or an absolute majority of the committee of management of the association, have passed, under the rules of the association, a resolution in favour of registration of the association as an organisation …” 34 The AEU argued the resolutions of the APF’s council and executive in favour of federal registration were not passed “under the rules of the association”. In particular it argued that only the founding members of the APF had become valid members of it. 35 In its reasons, the FB AIRC at [45]-[47] reviewed the principles governing the construction of rules of unincorporated associations and at [48]-[55] discussed principles relating to compliance with rules of unincorporated associations. In the course of this discussion the FB AIRC at [54] quoted from the reasons of the majority in Project Blue Sky at [93]. Their Honours there said that a “better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”. The FB AIRC said that although “that case was concerned with legislative obligations, the reasoning is clearly applicable to obligations imposed by the rules of unincorporated associations” ([54]). The FB AIRC did not advance reasons for this conclusion. The FB AIRC then said that with respect to an unincorporated association “the test is whether it was a purpose of the rules that an act done in breach of a rule should be invalid” ([55]). The FB AIRC said that “regard must be had to the language of the relevant rule and the scope and object of the whole of the rules … the test involves the proper construction of the rules including, if appropriate, in the context of the factual matrix that existed at the time they were adopted” ([55]). 36 At [61] the FB AIRC said the expression “under the rules of the association” in s19(1)(h) required no more and no less than that the resolution had been passed in conformity with such of the rules of the association as were, on their face, directly concerned with the passage of resolutions by the committee of management. The Full Bench said it did not permit a “collateral challenge based on breaches of other rules of the association at a time far removed from the passage of the resolution in question” ([61]). The Full Bench said s19(1)(h) did not: “… permit a challenge in the form of an attack of the validity of the status of persons who are said to form the committee of management where the evidence suggests that those persons have been accepted as valid members of the association and as members of the committee management and the breach is set to impugn their status as members of the association or the committee of management occurred at a time far removed in the passage of the resolution in question” ([62]). 1820 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. 37 At [72] and [73] the Full Bench referred to the approach “mandated” and “laid down” in Project Blue Sky. Again the Full Bench did not explain why Project Blue Sky was applicable to the issues before them. 38 In Lawler the Full Court decided to issue a writ of certiorari quashing the decision to register the APF. The members of the Full Court (Moore, Lander and Jessup JJ) each wrote separate reasons although the primary judgment was that of Jessup J. The present point was only discussed by Jessup J and then only fleetingly. In paragraph [312] his Honour referred to an argument about an election not being valid as no returning officer had been appointed by the council of the APF as required by the rules. His Honour said that this did not invalidate the election as that requirement was “directory rather than mandatory”. Jessup J then said: “In accordance with the approach proper to be taken in the analogous situation of the construction of statutes, laid down in Project Blue Sky, I agree with the Full Bench that, on a proper construction, r 21(d) did not evince an intention that non-compliance with the requirement that the returning officer be appointed by the Council would of itself produce the result that any election in fact carried out otherwise in accordance with the rules would be a nullity.” 39 To this limited extent therefore the reasoning in The AEU Decision was endorsed. 40 I do not accept however that Lawler and The AEU Decision and their reliance on Project Blue Sky assist the applicant in countering the alleged invalidities. The AEU Decision is factually and legislatively distinguishable from the present. In this application the alleged invalidities are directly related to the sequence of events and resolutions, within a relatively short space of time, and on which the application is based. Moreover the terms of s55(4) of the Act are different from the section of the WRA considered by the AIRC. Additionally I do not and with respect think that the AIRC and Jessup J were necessarily correct in simply transposing the reasoning in Project Blue Sky into an analysis of the consequences of an organisation not complying with its rules. Pre Hearing and Other Documents 41 Pursuant to orders which were made prior to the hearing of the application, the parties filed witness statements, bundles of documents which were sought to be relied on and an outline of opening submissions. In some instances supplementary witness statements were also filed. Written outlines of submissions were subsequently filed which dealt specifically with the alleged invalidities. The Course of the Hearing 42 As indicated earlier the hearing commenced on the basis that it was to determine both objections to validity and the merits of the application. This changed after the objector filed a document entitled “Particulars of Objectors as to Invalidities” on the third day of the hearing. 43 The course of the hearing was as follows: (a) 5 May 2008 – Opening by the applicant’s counsel. (b) 6 May 2008 – Evidence in chief and commencement of cross-examination of Mr Noel Strickland, principal of Challis Primary School and the inaugural president of the applicant. (c) 8 May 2008 – (i) Continued cross-examination and re-examination of Mr Strickland. (ii) Evidence of Mr Tonci (Tony) Misich, principal of Beaumaris Primary School and member of The Western Australian Primary Principal’s Association (WAPPA). (d) 9 May 2008 – (i) Evidence of Mr Grant O’Sullivan, principal of South Perth Primary School. (ii) Evidence of Mr Peter Fitzgerald, principal of Donnybrook District High School and a member of the Western Australian District High Schools Association (WADHSA). (iii) Evidence of Ms Patricia Joss, principal of Australind Primary School. (iv) Evidence of Mr James Davies, deputy principal of Beechboro Primary School. (v) Evidence of Ms Dale Miller, deputy principal of Central Midlands Senior High School. (vi) Evidence of Mr Peter Holcz, former principal of Mindarie Senior College and presently employed by the Department of Education and Training on a contract as the Director of a Schools Review. (vii) Witness statement of Mr Ron Bamford, principal of Canning Vale College, not required for cross- examination, received as an exhibit. (viii) Witness statement of Ms Denise Hilsz, principal of Winthrop Primary School, not required for cross-examination, received as an exhibit. (ix) Witness statement of Mr Raymond Maher, retired senior high school principal and former president of the Western Australian Secondary School Executives Association (WASSEA), not required for cross-examination, received as an exhibit. (x) Witness statement of Mr Norman Ireland, associate principal of Clarkson Primary School, not required for cross-examination, received as an exhibit. (e) 12 May 2008 – Submissions by counsel as to the course of the hearing. 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1821 (f) 13 May 2008 – Submissions by counsel as to the course of the hearing and procedural matters. (g) 3 June 2008 – Evidence of Ms Joan Weston, employed as the business manager of WAPPA and also provider of administrative assistance to the applicant. (h) 5 June 2008 – Submissions from counsel about objections to validity of application. (i) 6 June 2008 – Submissions from counsel about objections to validity of application. 44 For those witnesses who gave oral evidence, their evidence in chief consisted of the adoption of their witness statements and any supplementary witness statements, with any necessary corrections or removal, mostly by agreement, of objectionable paragraphs. The witness statements and associated documents were received as exhibits. The witnesses were then subject to cross-examination and counsel had the opportunity to re-examine. 45 In deciding upon the alleged invalidities, not all of the evidence which has to date been adduced is relevant. This is because as I have said the hearing commenced as if it was going to be about the merits of the application and not just the objections to validity. Alleged Invalidity 1 – The Special General Meeting Held on 6 March 2007 did not have the Power, under the Rules, to Authorise the Making of an Application for Registration under the Act 46 As set out above the determination of this alleged invalidity depends upon the resolution of OC(k) and (l). This involves analysing what occurred at the special general meeting on 6 March 2007. (a) The Evidence 47 The relevant evidence is primarily the minutes of the meeting and from Mr Strickland. Mr Strickland confirmed the accuracy of the minutes (T108). The minutes were headed “Western Australian Principals’ Federation Special General Meeting 6 March 2007”. They recorded that the meeting opened at 4:00pm and that those present were as “per attendance sheet”. The minutes recorded a quorum of 24 members in attendance plus 96 proxies. The minutes recorded that Mr Strickland provided an update. Three resolutions were then dealt with. These were recorded as follows in the minutes: “Resolution 1: Amending the Constitution by replacing it with the new Rules of WAPF. Resolution 2: Authorising WAPF to apply for registration as an industrial organisation. Resolution 3: Authorising the President to sign all documents.” 48 The minutes recorded the proposed resolutions were previously forwarded to members for consideration. Each of resolutions 1, 2 and 3 were passed, in that order, and unanimously. Six items of “other business” were then attended to and questions were taken and answered. 49 Resolution 1 was the amendment of the constitution of the applicant by its replacement with the rules. (b) The Objector’s Submissions 50 The objector contended that once resolution 1 was passed, the applicant including those at the special general meeting were thereafter subject to those rules and not the constitution. In addition the rules materially amended the constitution as follows: (i) Clause 11.1 of the constitution had provided that the overall control of the affairs and operations of the applicant rested with the members at annual and special general meetings. In contrast rule 19(d) provided that: “Council shall be the supreme governing body of the Federation and have the management and control of the affairs of the Federation …”. That rule went on to say that “in particular” the council had 13 powers which were then set out. (ii) Clause 11.2 of the constitution was not replaced with an equivalent rule. It had given the power to the members at an annual general meeting or special general meeting to review any decision taken by council. (iii) Clause 31 of the constitution, which had provided to an annual general meeting or special general meeting the exclusive power to alter the constitution, was not replaced with an equivalent rule. 51 Accordingly it was submitted the rules dramatically changed the balance of power between the council and the members at an annual or special general meeting. It was submitted that from the time when the rules where adopted, the only power given to a special general meeting was contained in rule 28(c) as follows: “A Special General Meeting shall not be competent to deal with any matters other than the reason set out in the petition of members, or the notification of such meeting as approved by Council and Executive.” 52 The objector submitted that after the passing of resolution 1 the special general meeting was not authorised to pass resolution 2 because by then the special general meeting did not have the power to do so under the rules. Accordingly resolution 2 was invalid. (c) The Applicant’s Submissions 53 In response the applicant submitted the rules adopted at the special general meeting did not apply to resolution 2, the decision to authorise applying for registration under the Act. It was submitted the three resolutions were all concerned with the application for registration and clearly intended to take effect only at the conclusion of the meeting. Accordingly resolution 1 was not intended to come into effect until resolutions 2 and 3 had been considered and voted on. Additionally, the adoption of 1822 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. the rules did not nullify the calling of the meeting in accordance with the constitution, or prevent the meeting from dealing with the other business for which it had been called. 54 It was submitted the notice of the meeting was given in accordance with the constitution. Accordingly the special general meeting was properly called and authorised to consider and pass the three resolutions contained in the notice sent to members on 26 February 2007. 55 The applicant elaborated that each of the resolutions was intended to take effect only at the conclusion of the meeting because there was no need to consider or pass resolution 1 until resolution 2 was considered and passed. It was explained that if the applicant were to resolve to file an application in the Commission for registration as an organisation of employees under the Act, which it did, then it would need to amend its rules to allow that to happen. Also if the meeting had not resolved to file an application for registration there would be no need for resolution 1. Similarly but not identically there would be no need for resolution 3 unless resolution 2 was considered and passed (T273). (d) The Objector’s Reply 56 In reply the objector pointed to the contents of the notice of the meeting sent on 26 February 2007. It was submitted the paragraph of the notice about the purpose of the meeting was indicative of the intended sequential passing of resolutions rather than an intention that all of the resolutions only take effect at the end of the meeting. 57 It was also submitted that ordinarily resolutions take effect when passed and there was nothing to indicate anything different occurred on 6 March 2007. (e) Analysis and Conclusion on Alleged Invalidity 1 58 At the nub of the applicant’s contention is that the passing of resolution 2 was valid because it was in accordance with the constitution of the applicant. Whilst this may be so, in my opinion by the time resolution 2 was voted upon the constitution no longer applied. It had been replaced by the rules because of the passing of resolution 1. I do not accept the applicant’s submission that none of the resolutions were intended to take effect until the end of the meeting, when all of the resolutions had been passed. Neither the notice sent on 26 February 2007, the terms of the resolutions nor the minutes support this argument. In particular the minutes record each of the resolutions being passed in their numerical and sequential order. 59 Earlier I have analysed the reference to and meaning of “the rules of the organisation” in s55(4)(a) of the Act. The applicable “rules” in this case were the “rules” adopted at the special general meeting on 6 March 2007 and not the “constitution”. 60 Unless therefore it was intended that resolution 2 provide authorisation in accordance with the rules adopted by resolution 1 (which were required to be lodged with the Commission), the application could not be other than refused by the Full Bench because of the terms of s55(4)(a). But if this was the intention, and the evidence supports that it was, alleged invalidity 1 has been established. This is because the application for registration was not authorised in accordance with the rules. Either way s55(4)(a) of the Act requires a decision that the application be refused. (f) The Applicant’s Alternative Argument 61 The applicant sought to resist alleged invalidity 1 on an alternative basis. This argument relied upon Project Blue Sky, which as I have said earlier does not in my opinion assist the applicant. 62 The applicant made these points in support of the submission: (i) The notice of the special general meeting was given to all members including members of the inaugural council. (ii) All members of the inaugural council other than Mr Holcz attended the special general meeting in person or by proxy. (iii) The resolutions proposed at the special general meeting were passed unanimously. (iv) There was no evidence that any member, including those members of the inaugural council who attended at the meeting, objected to the holding of the special general meeting or the meeting considering or voting on the three resolutions which were put to it. 63 All of this may be so, but these facts are not dissimilar to Re Electrical Association. It was the Act which in that application and in the present case mandates the consequence that a failure to pass a resolution in accordance with the rules leads to the refusal of the application by the Full Bench. This cannot be overcome by a failure to object by members, or a substantial compliance with the rules. 64 Accordingly invalidity 1 is established. Alleged Invalidity 2 - The Special General Meeting was not a Validly Called Meeting and no Business could have then been Validly Transacted because the Special General Meeting had not been Called, as Required by the Constitution, by the Council of the Applicant because no Council Existed on 20 February 2007 65 Given the conclusion reached on alleged invalidity 1 it is not strictly necessary to decide the other alleged invalidities. In deference to the fully argued submissions of the parties and in case of appeal it is appropriate however to do so. 66 As set out above the determination of this alleged invalidity principally depends upon the resolution of OC(a)-OC(d). This is explained more fully below. (a) The Issues 67 Clause 13.1 of the applicant’s constitution provided that a special general meeting may be called by the council. The applicant relies upon the meeting of 20 February 2007 as being a meeting of the council which authorised the calling of the special 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1823 general meeting on 6 March 2007. The objector submitted this did not occur because as at the former date there was no council established in accordance with the constitution. 68 The objector submitted invalidity 2 combined three propositions being: (i) The adoption of the constitution on 18 January 2007 was ineffective to constitute an “inaugural council”. (OC(a),(b)). (ii) The purported appointment/election of the council on 18 January 2007 failed to appoint/elect a council because there was no compliance with the requirements of the constitution as to the holding of elections. (OC(c)). (iii) Further and in any event the persons purportedly elected or appointed on 18 January 2007 did not constitute an “inaugural council” which met the description of that body as specified in the constitution. (OC(c)). 69 The determination of invalidity 2 rests in large part upon what happened at the meeting on 18 January 2007. In his final submissions, on two occasions, counsel for the applicant conceded that if the Full Bench did not accept his arguments about what occurred at the meeting on 18 January 2007 it would be “difficult” for the applicant to resist alleged invalidity 2. In my opinion this concession was properly and appropriately made. (b) The Applicant’s Submission about Establishment 70 The applicant’s counsel submitted the applicant was established in the “usual way” on 18 January 2007. The expression “usual way” was taken from the AIRC decision in Re Postal Delivery Officers Union (Unreported, AIRC, Print S3192, 18 February 2000) at [63]. It was there said: “The usual way for an association to be formed is for a group of persons to get together and agree to form an association and to be bound by its rules. The rules usually provide that specified persons will hold office until a given date or event. In this period the body is set up. It has foundation members. It can then recruit members and hold meetings in the way that the rules permit.” 71 It was submitted the applicant was established on 18 January 2007 by the inaugural members named in a schedule A to the constitution: (i) Meeting and agreeing to establish the applicant, to adopt attachment B as the constitution and be bound by the terms of the constitution as a contract between themselves. (ii) Appointing an inaugural council of eight persons in accordance with and named within clause 14.3 of the constitution. (iii) Appointing as the officers of the applicant, the inaugural president, vice president and treasurer in accordance with clause 15.1 and named within clause 15.2 of the constitution. (iv) Appointing three additional inaugural executive members from each of the primary, district high school and secondary sectors in accordance with and named within clause 16.2 of the constitution. 72 The applicant’s contentions depend upon the terms of the constitution, which it asserts is attachment B. Attachment B provides in clause 14.10 that the council “shall be the supreme governing body” of the applicant. Its general and specific powers are then set out. Clause 14.10(e) gives the council the power to call a “special general meeting”. 73 Clause 14.1 says that the “inaugural Council shall consist of up to twelve (12) members”. 74 Clause 14.2 provides: “Thereafter Council shall consist of twelve (12) members comprising at least four (4) members from each of the primary, secondary and district high school sectors”. It was submitted the effect of this clause was there was no requirement for the inaugural council to have four members from each of the three industry sectors that “that was only a requirement for any subsequent Council” ([32]). Clause 14.3 said the inaugural council “will be constituted by the following named persons …”. The names of eight people were then set out. The applicant submitted there was no requirement for the inaugural council to be elected. Clause 14.4 gave the inaugural council the power to appoint additional council members up to a total of 12. Clauses 14.5 and 14.6 set out the date or event which would lead to the cessation of the holding of office of the inaugural council. The default position under clause 14.5 was the inaugural council would hold office until 31 December 2008. Clause 14.7 said that with respect to the event/date which caused the ceasing of the holding of office: “Thereafter the members will elect representatives of council in accordance with the Constitution”. Clause 22 is about the election of council members. Clause 22.1 specifically said: “Save as provided in clauses 14.1, 14.3 and 14.4, the provisions of this clause shall apply to the election of Council members”. It was therefore made clear that the appointment of the inaugural council did not require an election. 75 The consequence of this, the applicant submitted, was that the inaugural council was validly appointed prior to and named in the constitution. It did not need to be elected. It had the power to call a special general meeting. It did so at its meeting on 20 February 2007. Written notice of the special general meeting was given on 26 February 2007. The notice advised members of the special general meeting on 6 March 2007 and set out the motions for the meeting. They included the replacement of the constitution with the rules and the authorisation of the making of an application to register the applicant under the Act. (c) The Objector’s Contention 76 The objector’s submission was that what is described in the previous paragraph did not validly occur. This was because no inaugural council had been appointed prior to and named in the constitution which was adopted at the meeting on 18 January 2007. As such the constitution only provided for the council to be elected. The council was not so elected. Accordingly no council validly existed which could or did meet on 20 February 2007 and decide to or did call the special general meeting. 1824 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. 77 At the forefront of this submission is that the applicant could not establish attachment B was adopted as the constitution at the meeting on 18 January 2007 (OC(a)). The objector contended that exhibit E was the document adopted as the constitution (OC(b)). Although both attachment B and exhibit E were headed “Constitution of the Western Australian Principals Federation” they are materially different. Most significantly attachment B has typed in it the names of the inaugural office bearers, council and executive of the applicant in the places in the document I have identified above. In exhibit E no names are included in these places; the spaces for names to be inserted are left blank. (d) What Occurred at the Meeting on 18 January 2007 and which Document was Adopted as the Constitution of the Applicant 78 Both Mr Strickland and Ms Weston gave evidence about the meeting on 18 January 2007. In addition the minutes of that meeting were in evidence as were the two relevant versions of the constitution, being attachment B and exhibit E. (i) Minutes of the Meeting of 18 January 2007 79 The minutes were taken by Ms Weston. It is appropriate to set out the minutes in full as follows: “MINUTES OF MEETING TO FORM WESTERN AUSTRALIAN PRINCIPALS' FEDERATION 18 JANUARY 2007 Present: Stephen Kemp (Jackson McDonald), Karen (Jackson McDonald) Colin Pettit (WAPPA) Noel Strickland (WAPPA) Jeff MacNish (WADHSAA) Ken Austin (WADHSAA) Kevin Brennan (WAPPA) Denise Hilsz (WAPPA) Stephen Breen (WAPPA) Peter Holcz (WASSEA) Nick Jakowyna (WASSEA) Peter Fitzgerald (WADHSAA) Leah Vogler (WAPPA) Business: 1. To form an Unincorporated Association to apply for registration as a Trade Union. Will not be registered with the Dept Fair Trading. The Incorporation will come through the registered Trade Union under the Industrial Relations Act. The draft Constitution was distributed. The Constitution is modelled closely on the constitution of the APF (Australian Principals' Federation) and has been modified to comply with the WA Industrial Relations Act. Clause 30 - Indemnity. The WAPF would not enter into any contract without acknowledgement from the other party that there would be no liability. The Committee agrees on the subscription charge Joint membership - representation from all sectors Will need 200 members to successfully register A Special General Meeting will be called late February at the latest. The final constitution will be drawn by mid February. The new Constitution will be fully compliant with the Industrial Relations Act By March 7th the WAPF will apply for Registration. Will be listed in the March Government gazette. Apply for hearing in April. Can use the APF argument regarding conflicts between management and teachers. Voting rights - 4 each to Primary, Secondary and District High. Clause 2 - Interpretation. Add reference to "Principal Class" to include Deputy Principals. Clause 8.2 (c) refers to WASSEA Clause 8.5 - the representative is an observer and is not entitled to vote. (ref to Clause 8.6) Schedule A - signed by Noel Strickland, Kevin Brennan, Denise Hilsz, Stephen Breen, Colin Pettit, Leah Vogler, Jeff McNish, Ken Austin, Peter Fitzgerald, Peter Holcz, Nick [Jakowyna], Neil Hunt. WAPF - The previous group has lapsed. 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1825 Discussion points: In response to the question "How does one become an Associated body" discussion has already taken place at Board level of WAPPA and WADHSAA and each group has agreed to the formation of the industrial body. WASSEA has not yet had this agreement. Funds from the Associations - there is no agreement on how the Associations will collect the money from their members. Council will decide how much the Associations will pay on behalf of their members and what individual members will pay. Future relationship to APF - APF don't want funds from WA except for capitation fee. The remaining funds would be kept in WA. Agreement that the formation of the WAPF is step one and the APF won't get in the way of that. 2. Elections Elections for the Executive positions of President, Secretary and Treasurer were held. President - Noel Strickland - Primary Secretary - Ken Austin - District High Treasurer - Nick Jakowyna – Secondary Elections for the initial Council were held Denise Hilsz - Primary Peter Fitzgerald - District High Neil Hunt – Secondary The Executive and initial Council form the Executive Council Additional Council members Kevin Brennan - Primary Peter Holcz – Secondary 3. Noel Strickland to open a bank account, set up a postal address and arrange for logo and letterhead design.” (ii) Mr Strickland’s Witness Statement 80 In his witness statement Mr Strickland gave evidence about the meeting at [102]-[103] as follows: “102. Towards the end of 2006, Colin Pettit informed me that WAPPA and WAOHSM had discussed the possibility of forming a State registered union. I expressed an interest in being involved and was subsequently invited to a meeting on 18 January 2007, called for the purpose of establishing an association with a view to this association applying for registration as a union under the Industrial Relations Act 1979 (WA). 103. I attended the meeting on 18 January 2007 along with the other "Inaugural Members" who signed the constitution. At the meeting the Inaugural Members: (a) discussed the formation of an unincorporated association and discussed which persons should be its first office bearers, including that I should become the inaugural President; (b) agreed to: (i) establish an unincorporated association to be named the Western Australian Principals' Federation; (ii) adopt the constitution of the WAPF, which had been drafted and provided to us in advance of the meeting; and (iii) be bound by the terms of the constitution as a contract between all members. (c) Signed the constitution and paid the stipulated membership subscription; 1826 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. (d) discussed how best to recruit further members to ensure that we achieved the minimum 200 members for registration in as short a period as possible, which included establishing joint membership arrangements with the various professional associations (for example WAPPA, WADHSA and WASSEA) to build membership of the WAPF; (e) confirmed that the Executive Committee should take steps to set in motion an application for the registration of WAPF as a union as soon as membership numbers had reached 200. [A copy of the constitution we signed begins at page 1 of the trial bundle and a copy of the minutes of the meeting held on 18 January 2007 begins at page 804A of the trial bundle.]” 81 The document identified in (e) became exhibit E. 82 There was no evidence about the meeting in Mr Strickland’s supplementary witness statement. (iii) Mr Strickland’s Cross-Examination 83 In cross-examination Mr Strickland said the minutes of the meeting were taken by Ms Weston (T82). He confirmed the minutes were provided to him. He said that “as well as I can remember” the people that attended the meeting were set out in the minutes. Mr Strickland’s attention was drawn to the “Constitution” which became exhibit E. Mr Strickland was asked whether that document was the subject of discussion as referred to in the minutes. Mr Strickland answered: “I believe so” (T82). Mr Strickland was then asked about schedule A to that document. There were a number of signatures on the schedule including that of Mr Strickland. Mr Strickland said he understood the signatures were written on that day. Mr Strickland agreed it was possible some people who were shown as signing the document did so at a later time. An example was put to Mr Strickland of Mr Neil Hunt. Mr Strickland said he did not know whether Mr Hunt signed the document at a later time than the meeting on 18 January 2007 (T82). 84 Mr Strickland confirmed that what he described at paragraph [103](b) of his witness statement occurred because of the people signing schedule A (T82-83). Mr Strickland was taken to the minutes which recorded in the second paragraph that the draft Constitution was distributed. Mr Strickland agreed that was what happened (T83). 85 There were then the following questions and answers: “So what happened was the draft constitution was distributed, there was discussion about a number of things - and they're identified on page 1 - and then there was a discussion about particular clauses of the constitution. You'll see clauses 2 and 8.2 and 8.5 identified on page 1 [of the minutes]. Then the persons in attendance signed schedule A. Is that the way it went?---As best I can remember, yes. Then thereafter there was some agreement as to who should hold various positions. You'll see that in paragraph 2. It was agreed, was it, that you be the president?---I was nominated and then it was agreed unanimously, yes” (T83). 86 Mr Strickland agreed that the other people who were listed in the minutes as being office bearers or on the executive council were “agreed” by the meeting to occupy those positions (T83). 87 There was then the following question and answer: “Can we accept then that these minutes, with the evidence that you've given about them, constitute to the best of your recollection a correct record of what occurred at the meeting of 18 January 2007?---I believe so” (T83). 88 Later in his cross-examination Mr Strickland gave evidence about the way in which people were appointed or elected to positions on 18 January 2007. He was asked whether there was a formal process. Mr Strickland answered that there “was no secret ballot or anything like that … I think we were asked for nominations … and there wouldn’t have been more than one nomination for each position, so the person nominated – it was basically agreed that they would do the position” (T108). Mr Strickland agreed that it was a “round table discussion where there was a consensus as to who would get which position” (T108). 89 There was no re-examination on this topic. (iv) Ms Weston’s Witness Statement 90 In her witness statement Ms Weston said she attended the initial meeting of the applicant on 18 January 2007 in her capacity as business manager of WAPPA and agreed to take minutes of that meeting. The statement then described the location of the minutes within the applicant’s bundle of trial documents. No other comment was made. (v) Ms Weston’s FSW Statement 91 The FSW statement of Ms Weston was dated 12 May 2008. That was after Mr Strickland had given evidence and the objector had filed its Particulars of Objections on 8 May 2008. 92 In the FSW statement Ms Weston said she was present for the whole of the meeting on 18 January 2007. She saw exhibit E being handed out to the inaugural members of the applicant at that meeting. Ms Weston then said that after the “Draft Constitution” had been handed out to all present at the meeting, people nominated themselves or were nominated for the 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1827 positions which she then set out. This was in accordance with the minutes. Ms Weston said that as there was only one nomination for each position that person was appointed to the position specified. 93 Ms Weston said that after the appointment of these people to the positions referred to, the meeting was suspended. Ms Karen Findlay-Grove, a solicitor employed by Jackson McDonald who was also present at the meeting, accompanied her to Mr Pettit’s office in the same building that the meeting was being held in. Ms Weston said she then saw Ms Findlay-Grove type in the names: “(a) Noel Strickland, Ken Austin, Nick Jakowyna, Denise Hilsz, Peter Fitzgerald, Neil Hunt, Kevin Brennan and Peter Holcz in clause 14.3 of the Draft Constitution; (b) Noel Strickland, Ken Austin and Nick Jakowyna in clause 15.2 of the Draft Constitution; and (c) Denise Hilsz, Peter Fitzgerald and Neil Hunt in clause 16.2 of the Draft Constitution;” 94 After the typing Ms Weston said that she and Ms Findlay-Grove returned to the room where the meeting was being held and the meeting resumed. 95 Ms Weston said that on the resumption of the meeting, the document in which she saw Ms Findlay-Grove type the names was circulated to those present. Ms Weston said that she saw Mr Strickland, Mr Brennan, Ms Hilsz, Mr Breen, Mr Pettit, Ms Vogler, Mr MacNish, Mr Austin, Mr Fitzgerald, Mr Holcz and Mr Jakowyna sign their names next to where their names and “sectors” appeared in schedule A. 96 Ms Weston said after that occurred she made a copy of the document which included schedule A and gave that to Ms Findlay- Grove. Ms Weston said she saw Mr Hunt sign his name next to where his name and sector appeared in schedule A but this was at a later time than others in the meeting. Ms Weston said she could not “now” recall why he signed his name at a later time, but by then Ms Findlay-Grove left the meeting. 97 In the FSW statement Ms Weston described a search of the records of the applicant which she was asked to conduct by Mr Kemp of Jackson McDonald on 8 May 2008. Ms Weston said she was unable to find anything but schedule A to the Constitution. This was attached to the FSW statement and marked A. 98 Ms Weston then said that on 9 May 2008 Mr Kemp informed her that a search of the records of Jackson McDonald had located a document which appeared to be the document she said had been copied and given to Ms Findlay-Grove. Ms Weston said she read that document and confirmed it was a true copy. That document was attached to the FSW statement and marked B. It is what I have called attachment B. Ms Weston also explained there was a difference between attachment A to the FSW statement and schedule A “attached to the Constitution in that the former includes the signature of Neil Hunt and the latter does not”. (vi) Ms Weston’s Cross-Examination 99 When cross-examined Ms Weston said as business manager of WAPPA she attended the meetings of their governing body, the board. She did so for the purpose of taking notes of the meetings. Ms Weston said that she had been doing that for a number of years. Ms Weston agreed that she was an experienced minute taker. Ms Weston agreed that the function of minutes of meetings was to have an official record of the meeting. Ms Weston also agreed that in taking the minutes she carried out that job seriously and took them to the best of her ability (T213). Ms Weston said she “now” had a laptop computer onto which she typed minutes of the board meetings. Prior to that Ms Weston hand-wrote notes and then “faithfully” converted those into a typed record (T214). 100 Ms Weston was then asked about the minutes she took at the meeting on 18 January 2007. Ms Weston agreed she followed her then practice as a minute taker. That is she initially took hand-written notes which were “faithfully” converted into a typed record. 101 Ms Weston said she thought the meeting on 18 January 2007 occurred in the afternoon at about 4 o’clock. A little later Ms Weston said she thought the meeting was about 3 o’clock in the “late afternoon I think”. Ms Weston said she did not remember how long the meeting lasted. Ms Weston was asked “did it go for about an hour?” She answered “Probably, yes. It could have been more” (T215). Ms Weston said she and Ms Findlay-Grove left towards the end of the meeting. Ms Weston was asked whether the meeting closed within five or 10 minutes of their return. Ms Weston said “I don’t know for sure”. She was then asked whether it was a short period. Ms Weston answered: “yes, probably, but I can’t remember accurately” (T215). 102 Ms Weston was then asked about the reference to the minutes in her initial witness statement. Ms Weston agreed that in “putting the minutes in her statement” she sought to inform the Commission of what had occurred at the meeting on 18 January 2007. She agreed that she sought to “put a truthful account to the Commission as to what had occurred” (T215). 103 Ms Weston was then asked some questions about who spoke at the meeting. She recalled that Mr Kemp had spoken at the meeting but did not recall if he spoke early on about the terms of the draft Constitution. Ms Weston was then shown exhibit E but was unable to say whether it was a copy of the document distributed at the meeting (T217). 104 Ms Weston then said she believed that schedule A at the end of exhibit E was what was recorded as schedule A in the minutes. Ms Weston then agreed that at the point in the meeting identified in the minutes, schedule A was signed by the people there identified. Ms Weston was then referred to the heading in the minutes “Elections” and what then occurred (T217). Ms Weston agreed that the elections occurred before she and Ms Findlay-Grove left the meeting room (T218). 105 Ms Weston agreed she was standing over Ms Findlay-Grove so that she could observe what she was typing. Ms Weston said that she was spelling out some names for Ms Findlay-Grove. Ms Weston said that as far as she recalled, all that Ms Findlay- 1828 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. Grove did was to type in the names. Ms Weston agreed the minutes did not record she and Ms Findlay-Grove leaving the meeting or it being suspended. Ms Weston could not explain why that was not recorded (T219). 106 Ms Weston was not re-examined. 107 As I have said earlier, attachment B differs from exhibit E. In particular exhibit E does not include the names of the office bearers, council and executive members in clauses 14.3, 15.2 and 16.2 whereas attachment B does. (vii) The Applicant’s Submissions about 18 January 2007 108 The applicant sought to persuade the Full Bench that the constitution which was adopted by the meeting on 18 January 2007 was attachment B. The applicant submitted this was supported by the FSW statement of Ms Weston. Of particular significance was her evidence that the signing of schedule A occurred after Ms Weston and Ms Findlay-Grove returned with the version of the Constitution that had the names of the office holders typed into it. It was also submitted that it was not directly put to Ms Weston in cross-examination that the FSW statement was incorrect in the way in which Ms Weston described the events. Accordingly it was submitted the evidence which ought to be preferred was that in the FSW statement. It was also submitted the Full Bench should be cautious about adopting the position that the minutes reflected what occurred in a chronological sequence. It was submitted the minutes reflected a “subject matter record” rather than a “chronological order” (T226). 109 It was also elsewhere submitted that the minutes of Ms Weston were not the best set of minutes ever taken (T275). 110 Given the complaint by the applicant’s counsel that Ms Weston was not asked directly by counsel for the objector about the sequence described in the FSW statement being incorrect, there was discussion with the former about whether there was power to recall Ms Weston to give additional evidence. Counsel for the applicant said the decision of counsel for the objector not to cross-examine her directly on the issue was assumed to be quite deliberate as was his own decision not to re-examine. He did not however submit that Ms Weston should be recalled (T267). (viii) The Objector’s Submissions about 18 January 2007 111 Counsel for the objector submitted the differences between exhibit E and attachment B was not only the insertion of the names of the office bearers. Firstly in clause 5.2 of attachment B in the third line in brackets after the word “Principal” it says “as that term is used in clause 5.1(a)”. This is not in exhibit E. Secondly clause 14.1 is different in attachment B from exhibit E. A number of words have been removed, being “comprising at least four (4) members from each of the primary and district high school sectors” (T248-249). 112 The objector submitted whatever document Ms Weston and Ms Findlay-Grove returned to the meeting with, it was not attachment B. This is because it was apparent that some thought had gone into the redrafting of these two clauses and Ms Weston’s evidence was quite contrary to this having occurred when she and Ms Findlay-Grove left the meeting and Ms Findlay-Grove typed in the names of the office bearers into the document. 113 The objector’s primary position however was that the constitution of the applicant was adopted at the time when schedule A was signed. According to the minutes this was at a time prior to the election of office bearers. On the evidence of Ms Weston in cross-examination it was also prior to the suspension of the meeting to enable Ms Weston and Ms Findlay-Grove to type the names into the constitution. The constitution adopted was therefore exhibit E (T248). 114 In support of this proposition the objector relied upon 10 facts as follows (T246-247): (1) The meeting was constituted by the attendance of 10 individuals accompanied by Mr Kemp, Ms Findlay- Grove and Ms Weston as minute taker. (2) A draft constitution was distributed early in the meeting. This was supported by paragraph 2 on the first page of the minutes and confirmed by the oral evidence of Mr Strickland in cross-examination (T83). (3) The draft constitution which was distributed was exhibit E on the oral evidence of Mr Strickland (T82). (4) There was a discussion about exhibit E. This was supported by the first page of the minutes, Mr Strickland’s oral evidence and also that of Ms Weston. (5) Schedule A to exhibit E was in the form of the document attached to it in the applicant’s bundle of documents. This was identified by Ms Weston in cross-examination. (6) After the discussion schedule A was signed by the people named in the schedule. This was supported by the minutes and confirmed by Mr Strickland and Ms Weston in their oral evidence (T85 and T217). (7) After schedule A was signed there were further discussions and a process whereby it was agreed particular individuals be elected or appointed to particular positions. This was supported by page 2 of the minutes and confirmed by Mr Strickland at T83 and Ms Weston at T218 in their cross-examination. (8) The elections were informal in that no returning officer or other formality occurred; it was simply a round table discussion. This was supported by Mr Strickland in his oral evidence (T108). (9) Sometime thereafter the meeting was suspended so that Ms Weston and Ms Findlay-Grove could go to another office in the building and Ms Findlay-Grove could type names into clauses 14.3, 15.2 and 16.2 of a document in the form of a Constitution. This is supported by the FSW statement of Ms Weston and her oral evidence (T218-219). (10) Ms Weston and Ms Findlay-Grove returned to the meeting which resumed. There was then discussion about the opening of a bank account before the meeting closed. This was supported by the oral evidence of Ms Weston (T219). 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1829 103 The objector submitted that after point 6 the applicant was formed and thereafter the members were bound by the constitution which had been circulated and the subject of discussion. That constitution was exhibit E. This submission was made because schedule A said: “In accordance with the provisions of 6.1 the following persons comprising inaugural members of the federation agree to: (1) Establish the federation. (2) Adopt this Constitution as the Constitution of the Federation; and (3) To [sic] be bound by the terms of this Constitution which shall constitute a contract between the members.” (ix) Analysis 104 The objector’s counsel did not directly put to Ms Weston that the document she and Ms Findlay-Grove returned to the meeting with was not attachment B. Given the submission counsel made about the document (that attachment B was not the document they returned with) and this directly contradicted the evidence of Ms Weston, in fairness this ought to have occurred. (State School Teachers’ Union of WA (Incorporated) v Director General, Department of Education and Training (2007) 87 WAIG 2548 at [51]). In the absence of that process having occurred there is some difficulty in making the finding that attachment B was not the document they returned with. A finding on that point however is not critical to the determination of the alleged invalidity. 105 As set out earlier, counsel for the applicant also placed weight upon it not being directly put to Ms Weston that the sequence of events described in the minutes was different to that contained in her FSW statement and the former was to be preferred where it differed from the latter. I am less concerned about this however because Ms Weston was taken through the minutes insofar as they were relevant and confirmed the sequence of events. Counsel for the applicant could have re-examined Ms Weston on the point but chose not to do so. In addition, when raised with counsel during closing submissions on the objections to validity, no submission was made that Ms Weston should be recalled to be asked about the point. 106 In my opinion the evidence which Ms Weston gave in cross-examination about the sequence of events is to be preferred. This is because: (1) It was generally corroborated by the minutes which were taken by her at the time the meeting had occurred. (2) The evidence given by Ms Weston as to her practice in taking minutes and her experience in that role, strongly suggests that she made a chronological record of events at the time which was then “faithfully” typed up. (3) As the objector’s counsel outlined, relevant parts of her evidence were corroborated by the evidence of Mr Strickland. (4) In her first witness statement, Ms Weston simply attached the minutes of the meeting to it, without comment. In cross-examination she confirmed that this was to provide to the Full Bench with an accurate record of what had occurred. (5) In her oral evidence, Ms Weston was clearly unsure about details of the meeting which had not been recorded in the minutes. In my opinion a contemporaneous record of what occurred in the form of the minutes is more likely to be accurate than Ms Weston’s recollections some 16 months later. This is because of the ordinary process of memories fading. The clear reason why Ms Weston took contemporaneous notes of the minutes and then faithfully typed them up was to try to ensure that there was an accurate record of what occurred. (6) I accept the submission of counsel for the applicant that the minutes are arranged in subject matter. This is not inconsistent however with the minutes also being an accurate record of the sequence in which events occurred. 107 In my opinion on balance the applicant cannot establish attachment B was the document in which, or with respect to which, the inaugural members of the applicant signed annexure A. That document was exhibit E. (e) The Consequences of Exhibit E being the Constitution – The First Proposition 108 As I have said in clause 14.3 of exhibit E there is an absence of names in the spaces where the names of the members of the inaugural council could have been inserted. I accept therefore that the constitution which was adopted was ineffective to establish an inaugural council, identify the members of that body or provide any means for an inaugural council to be simply appointed. Additionally the objector submits and I accept that, as no names were inserted in exhibit E at clauses 14.3, 15.2 and 16.2, the adoption of the constitution did not appoint an inaugural council, inaugural officers nor an executive. The objector’s first proposition, comprising OC(a) and (b), is established. (f) The Second Proposition 109 The objector’s second proposition is that once exhibit E was adopted as the constitution, the only manner of appointing members of the council was by way of an election in accordance with clause 22. This provided for a secret postal ballot (clause 22.2), separate electorates for different categories of members of council (clause 22.4), and the election to be conducted by a returning officer (clause 22.9) appointed by council after the annual general meeting (clause 22.7). It was submitted by the objector that none of these steps were complied with. This was not contested by the applicant. Mr Strickland accepted that there was no formal process for the “electing” of the council members (T108). 1830 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. 110 Accordingly the objector submitted the purported election or appointment of people to the council on 18 January 2007 was invalid. A council was not then established. The same applied with respect to the purported election or appointment of the officers and the executive (see clauses 14.8 and 23). 111 The objector also submitted the meeting purported to appoint Mr Austin as secretary when no such position existed under the constitution, and failed to appoint a vice president. The applicant submitted that although the minutes referred to the appointment of Mr Austin as secretary this was an error as he was appointed vice president as named in clause 15.3 of attachment B. Whether Mr Austin was elected as secretary and if so, what the consequences of this might be need not be considered. The point is superfluous to the determination of the present issue. 112 I accept the submissions of the objector. The second proposition, OC(c), is established (g) The Third Proposition 113 The objector’s third proposition, which is further or alternative to the first two, is that an inaugural council was not established on 18 January 2007 because it did not have four members from each of the primary, secondary and district high school sectors as required by clause 14.2 of the constitution. The objector pointed to schedule A to exhibit E which set out the applicable sector of each member. The correctness of this information was not disputed by the applicant. It may be taken to establish that the council was purportedly constituted by three members from the primary, three from the secondary and two from the district high sectors. Therefore the membership of the council did not have the representation required by the constitution. 114 The third proposition, OC(c), is again established. (h) Conclusion on Alleged Invalidity 2 115 It was submitted by the objector that OC(d) was the consequence of the three propositions or OC(a)-(c) being established. That is the meeting on 20 February 2007 was not a meeting of the council. This was because no council had been appointed or elected in accordance with the constitution. It was submitted it then followed that if the council was not properly constituted in accordance with the constitution, the meeting on 20 February 2007 could not validly call the special general meeting and the resolutions passed at the meeting on 6 March 2007 were also not valid. 116 These arguments were supported by Re Australian Logging Federation (1978) 203 CAR 225 at 228. There, Coldham J decided that the “council” of the Federation had not been established in accordance with its rules. Accordingly a resolution passed by the “council” to register the Federation as an organisation under the Conciliation and Arbitration Act 1904 (Cth) was “no resolution at all”. The reasoning and conclusion of his Honour is applicable to the present case. Invalidity 2 is established. Alleged Invalidity 3 - The Special General Meeting was not a Validly Called Meeting as the Meeting on 20 February 2007 was not a Meeting of Council (a) The Objector’s Argument 117 The alleged invalidity involves the determination of OC(e)-(f). 118 More fully, the objector submits as an alternative basis of invalidity: (i) The Constitution of the applicant at the time of the special general meeting required a special general meeting to be called by the Council of the applicant. (ii) The applicant relied on the meeting on 20 February 2007 as a meeting of council which called for the special general meeting. (iii) That meeting was not however a meeting of the council. (iv) Accordingly as the council did not meet on 20 February 2007 the special general meeting was not validly called. (v) Accordingly no valid business could have been transacted at the special general meeting on 6 March 2007. 119 The key issue in this alleged invalidity therefore is whether the applicant could establish the meeting on 20 February 2007 was a meeting of its council. (b) The Applicant’s Argument 120 The applicant contends that on 20 February 2007 there was a meeting of its council which resolved to give notice to its members of a special general meeting for the purpose of registering the applicant under the Act. This follows the applicant’s position that at the meeting on 18 January 2007 it adopted attachment B as its Constitution. As I have set out, I do not accept this. In the event that this finding is in error, and to do justice to the submissions of the parties, it is appropriate to consider the issue of what occurred on 20 February 2007. 121 On this date there was a meeting. The applicant contended it was a meeting of the council of the applicant. The objector contended it was not. The issue of the nature of the body that met on that day is also significant and will be later analysed. Resolution 5 passed at the meeting was the most relevant for present purposes. It was: “5. Assuming the 200 members are achieved on current take up, it was resolved that a Special General Meeting to be called to pass the motion to seek registration. Possible dates: 28th February or 6th March. Venue to be booked. Members to be informed by email. Include the notices of motion and proxy form.” 122 The applicant submitted the inaugural council as set out in clause 14.3 of attachment B, was Mr Strickland, Mr Austin, Mr Jakowyna, Ms Hilsz, Mr Fitzgerald, Mr Hunt, Mr Brennan and Mr Holcz. The minutes of the meeting on 20 February 2007 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1831 record it was attended by Mr Strickland, Mr Austin, Mr Jakowyna, Mr Fitzgerald and Mr Brennan and that Mr Hunt, Ms Hilsz and Mr Holcz tendered apologies. 123 The applicant submitted that under clause 17.3 of attachment B a quorum for council and executive meetings, including therefore the inaugural council, was “one half of the persons entitled to attend and vote”. Accordingly a quorum of the council was present at the meeting on 20 February 2007 (T273). (c) Obstacles to the Applicant’s Argument 124 There are a number of pieces of evidence which stand in the way of the acceptance of the applicant’s position. They are: (i) The minutes did not describe the meeting as that of council but were simply headed “Western Australian Principals’ Federation Minutes of Meeting held 20th February 2007”. (ii) Present at the meeting were people who were not members of the inaugural council. They were Ms Leah Vogler, Mr Jeff MacNish and Mr Colin Pettit. (iii) In his witness statement at [106] Mr Strickland described the meeting as that of the “Executive Committee” which he said was the management committee of the applicant established under its then Constitution. (iv) In contrast to [106] of the statement of Mr Strickland, he used the word “council” at [5](b), (c) and (g), [6], [7], [8], [9], [17](c), [120], [121] and [122]. (v) Ms Weston in her witness statement also described it as an executive committee meeting. At [18] of her witness statement Ms Weston said Mr MacNish was on the “executive committee”. (vi) In his cross-examination Mr Strickland was asked what he meant by “executive committee”. He answered that he was “not sure. I mean, unfortunately at that stage there were terms being interchanged, and obviously that’s what has happened here”. Mr Strickland then agreed that he was not sure as to the status of the body that met on that day (T86). (vii) Mr Strickland said that Mr Pettit and Mr MacNish were observers (T86). As to Ms Vogler it was put to Mr Strickland: “She did participate in the meeting? She wasn’t just there as an observer?” To this Mr Strickland said: “I believe so” (T87). (viii) There was no evidence of any notice being given of a meeting of the council in accordance with clause 17.2 of attachment B. (ix) In Mr Strickland’s evidence he described the executive committee as being the executive plus two extra council members. The constitution did not provide for such a body in either the form of attachment B or exhibit E. Attachment B provided for an inaugural executive and inaugural council and an elected executive and council. (x) At [19] of the FSW statement of Ms Weston she said she used the expression “executive committee” in her statement because that was used by Mr Strickland at the time. (d) The Type of Business Argument 125 The applicant submitted the business dealt with at the meeting, as recorded in the minutes, was the sort of business which would be expected to be dealt with by the supreme governing body of an entity. This was because of the importance of the business (T274). 126 Counsel for the applicant relied in particular on the following items of business conducted at the meeting: (i) Membership numbers. (ii) Committee structures. (iii) A resolution for a special general meeting to be called to pass a motion to seek registration, once 200 members had joined, with possible dates discussed. (iv) Signing of agreements with other professional associations. (v) An agreement between the applicant and the Australian Principals’ Federation. (vi) A reference to a meeting between Mr Pettit, Mr Strickland and Mr MacNish and the Acting Director General of the Department of Education and Training where he was advised that the applicant, when registered, wanted to be on the committee to have industrial discussions. 127 These items comprised the majority of the business conducted at the meeting. (e) Quality of Minutes 128 The applicant also submitted, and these submissions applied to other minutes as well, that the minutes were not particularly fulsome. Counsel submitted with respect that it was not the best set of minutes ever taken. It was submitted in many respects the minutes were shorthand; they recorded essential facts, details and outcomes. The minutes did not record the level of participation of the attendees at the meeting. Accordingly although Mr Strickland said he believed Ms Vogler was a participant, it could not be ascertained from the minutes the extent to which she participated or may have exerted influence over others. (f) The Applicant’s Concluding Position 129 The applicant’s counsel concluded “that what we are dealing with here is a meeting of the council rather than a meeting of something else” (T275). 1832 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. (g) Proof by Inference 130 The applicant relies upon inferential or circumstantial, rather than direct, evidence to establish that the meeting on 20 February 2007 was a meeting of its council. Accordingly the observations made in Cross On Evidence, LexisNexis (at 9 July 2008) [9055], apply. It is there said: “Where satisfaction of the civil standard of proof depends on inference, there must be something more than mere conjecture, guess work or surmise. That is, there must be more than ‘conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture’ (Nominal Defendant v Owens (1978) 22 ALR 128 at 132 (Fed C of FCA), quoting from Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5; see Luxton v Vines (1952) 85 CLR 352). If there is, the test is as follows: ‘the difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the form of the facts must be such as to exclude reasonable high proficies consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged’ (Transport Industries Insurance Co Limited v Longmuir [1997] 1 VR 125 at 141; BC 960 3635, quoting Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5).” (h) Analysis 131 The evidence I have described and the submissions of the applicant do not persuade me that it is more probable than not that the meeting on 20 February 2007 was a meeting of the council of the applicant. This is because: (i) The minutes do not describe the meeting as such. (ii) The attendees at the meeting included people who were not members of council including one who probably participated. This at least balances out the applicant’s submission in response to (viii) above. (iii) With respect to the evidence at [124](viii), the applicant submitted “an inference should be drawn from the attendance or offering of an apology by each member of the Inaugural Council that notice of the meeting was given … In any event, the objective which would have been achieved by the giving of that notice has been met” (outline of submissions [40]). I accept this evidence supports the inference that the members of the council were given notice of the meeting. This does not however establish compliance with the notice requirement of clause 17.2 which was “written notice being sent to the member’s [sic] address, by email or by such other means as Council may determine from time to time”. Nor does it prove on balance that it was a meeting of the council. This is particularly so when some people who were not members of council attended the meeting. It was a meeting of people which included council members, but that is not the same thing. (iv) It was not described as a meeting of council by Mr Strickland or Ms Weston in their witness statements. (v) Mr Strickland’s evidence in cross-examination, set out earlier, suggests that he and others who were running the applicant were somewhat confused about how it was or ought to have been operating at the time. His evidence that various terms were used interchangeably, with respect, demonstrates a lack of understanding about the names, composition and functions of the bodies established by the constitution. (vi) Accordingly it cannot be established that Mr Strickland and those running the applicant intended this to be a meeting of the council of the applicant. As stated the attendance and probable participation of Ms Vogler is not supportive of the contention that it was a meeting of council. (vii) The applicant’s submission that, in effect, this was a meeting of council because one would expect council, as the supreme governing body, to deal with business of the type transacted is, with respect, superficially attractive but not cogent. Whether such an expectation exists is arguable, but more importantly what matters is whether it was a meeting of the council of the applicant in accordance with its constitution, not what one might have expected it to be. The circumstantial evidence does not on balance establish it was. (i) Conclusion on Alleged Invalidity 3 132 Accordingly invalidity 3 is established. Alleged Invalidity 4 - The Special General Meeting was not a Validly Called Meeting and no Business could have then been Validly Transacted because the Special General Meeting had not been Called, as Required by the Constitution by the Council of the Applicant, because no Authority was given by Council to Call the Meeting on 6 March 2007 in Accordance with the Constitution 133 The determination of this alleged invalidity involves the resolution of OC(g). (a) Constitution Clause 13 134 The alleged invalidity relies upon the contents of clause 13 of the constitution which is in the following terms: “13. SPECIAL GENERAL MEETINGS 13.1 Special General Meetings may be called by Council. 13.2 Council shall call a Special General Meeting within twenty one (21) days of receipt of a written petition signed by not less 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1833 than 15% of the aggregate total of Members specifying in detail the particular matter or matters in respect of which the Special General Meeting is to be called. 13.3 Seven (7) days notice shall be given to all Members stating the details of the matters for which the Special General Meeting has been called. 13.4 The quorum and procedures for dealing with adjournments where a quorum is not present shall be the same for Special General Meetings as they are for Annual General Meetings. 13.5 All Members shall be entitled to attend Special General Meetings. 13.6 The meeting shall consider only the specific matter or matters for which the meeting has been called, as specified in the notice concerning the meeting. 13.7 Council will determine the procedures to be followed at any Special General Meeting. 13.8 Minutes of the Special Meeting shall be confirmed at the next Annual General Meeting or Special General Meeting, whichever is the sooner.” 135 Accordingly, clause 13.1 empowers the council to call a special general meeting. Clause 13.2 obliges the council to call a special general meeting when the requirements of the clause are met. Clause 13.3 is a notice provision. It requires a notice to be given to the members stating “the details of the matters for which the special general meeting has been called”. Clause 13.6 provides that the meeting “shall consider only the specific matter or matters for which the meeting has been called, as specified in the notice concerning the meeting”. (b) The Notice Sent on 26 February 2007 136 The notice was sent by Ms Weston by email on instruction from Mr Strickland. The terms of the notice were: “WESTERN AUSTRALIAN PRINCIPALS’ FEDERATION NOTICE OF SPECIAL GENERAL MEETING Notice is hereby given to members under clause 13.1 of the Constitution that the Council of the Western Australian Principals' Federation (‘WAPF’) has called a Special General Meeting on Tuesday, 6 March 2007 at 4.00pm at the Western Australian Golf Club 60 Hayes Avenue, Yokine 6060 The purpose of the Special General Meeting is to consider and approve the following resolutions: 1. That the constitution of the WAPF be amended by replacing it in its entirety with the Rules of the WAPF. 2. That the WAPF file an application in the Western Australian Industrial Relations Commission for registration as an industrial organisation under the Industrial Relations Act 1979 (WA). 3. That the President be authorised to sign all documents on behalf of WAPF as may be necessary to give effect to the resolution 2 above. Members may request a printed copy of the “Rules of the WAPF” by telephoning Joan Weston on 6380 1755 or emailing wapfmail@iinet.net.au. Resolution 1 is proposed to change the Rules of WAPF to be consistent with the requirements of the Industrial Relations Act 1979 (WA) in order to allow the WAPF to apply for registration as an industrial organisation. Resolutions 2 and 3 authorise the President to take all steps as may be necessary for [sic WAPF] to apply for registration of WAPF as an industrial organisation. Clause 31 of the Constitution requires resolution 1 to be passed by at least 75% of members present in person or by proxy. It is therefore very important that, if you are not able to attend the meeting, you appoint a proxy to vote on your behalf. A proxy form is attached and should be returned to WAPF by fax to 6380 1766 as soon as possible. This is a very important meeting for WAPF. I accordingly encourage all members to attend, whether in person or by proxy.” (c) The Issue 137 It was submitted the notice sent by email to members by Ms Weston on 26 February 2007 was issued upon Mr Strickland’s instruction without the authority of council. It was submitted that if the meeting on 20 February 2007 was a meeting of the 1834 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. council, the only purpose identified in the minutes of that meeting, for the calling of a special general meeting, was to “pass the motion to seek registration”. (See resolution 5 quoted above). It was submitted that neither the notice of the special general meeting issued to members nor the proposed new rules were before the meeting on 20 February 2007. This was said to be borne out by the evidence of Mr Strickland (T87). The objector submitted that nothing done at the meeting on 20 February 2007 contemplated the replacement of the constitution and accordingly no special general meeting was authorised to be called for that purpose. (d) Analysis and Conclusion on Alleged Invalidity 4 138 The alleged invalidity calls into question the form and content of the notice in comparison to what was resolved at the meeting on 20 February 2007. The relevant resolution was that a special general meeting be called to pass the motion to seek registration. 139 Mr Strickland arranged for the notice sent on 26 February 2007 to be sent to members and set the date of the special general meeting. (See the cross-examination of Mr Strickland at T87 and Ms Weston’s witness statement at [12]-[13]). The notice has been quoted above. It purported to say, in effect, that each of the proposed resolutions were needed to be passed to allow for the registration of the applicant as an industrial organisation. 140 In my opinion the form and content of the notice was within the scope of the motion which was passed at the meeting on 20 February 2007. As submitted by the applicant’s counsel, the three resolutions were part of a package serving the same ultimate purpose of registration (T287). 141 Invalidity 4 cannot be established. Alleged Invalidity 5 - The Special General Meeting was not a Validly Called Meeting and no Business could have been Validly Transacted because the Special General Meeting had not been Called by a Notice Given in Accordance with the Constitution (a) The Issue 142 The determination of this alleged invalidity depends upon the resolution of OC(h)-(j). 143 The alleged invalidity is that the content of the notice did not provide what was required by the constitution. It differs from the analysis of alleged invalidity 4 in that invalidity 4 was about whether the notice went beyond what was authorised by the meeting on 20 February 2007. In alleged invalidity 5 the question is whether the notice provided what the constitution said it must. 144 The objector relied in part upon the requirements of clause 13.3 of the Constitution. It submitted that the “details of the matters for which the special general meeting has been called” were not provided by the notice as required by clause 13.3. Additionally, the objector relied upon clause 31 of the Constitution which is as follows: “31. CHANGES IN THE CONSTITUTION This Constitution may be changed by at least 75% of members present in person or by proxy and voting at the Annual General Meeting or at a Special General Meeting called for that purpose provided a notice of motion of the amendment has been given in writing in accordance with the requirements of clauses 12.6 or 13.6 of this Constitution.” 145 It was contended that no “notice of motion of the amendment” had been given in writing. (Clause 12.6 is not relevant because it refers to a member wishing to propose a motion). (b) Legal Points 146 In my opinion the contents of clause 13 reflect the ordinary purposes of the giving of notice of meetings. As set out in Dargavel v Cameron [2002] FCA 1234 at [79] it is so that members are made aware of the business to be conducted and to give those members an opportunity to decide whether to attend, to consider their attitude to the business of the meeting and prepare for discussion should they wish to do so. As stated in McLure v Mitchell (1974) 24 FLR 115 at 140: “The purpose of a notice of a meeting is to enable persons to know what is proposed to be done at the meeting so that they can make up their minds whether or not to attend. The notice should be so drafted that ordinary minds can fairly understand its meaning. It should not be a tricky notice artfully framed (Henderson v Bank of Australia (1890) 45 Ch.D. 330 at 337)”. 147 As submitted by the objector, where business has been conducted at a meeting by a governing body in breach of the rules about the giving of notice to members, in due time and with proper notification of business, that meeting is null and void and no business can be validly transacted at the meeting (Myer Queenstown v Port Adelaide (1975) 11 SASR 504 at 527). The objector cited Re Mirvac Ltd (1999) 32 ACSR 107, in which the shareholders of a company were provided with only a summary of the proposed changes to its constitution and not a full copy of the voluminous changes. At 112 Austin J said a notice to change the constitution should: “give a concise and clear summary of the effect of the changes which is materially comprehensive … those responsible for convening a meeting at which constitutional changes are proposed must be scrupulously careful, if they are to use the disclosure technique used in this case, that the summary of the effects of the changes is accurate and complete in all material respects”. 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1835 148 The objector submitted the notice of the special general meeting did not provide a summary of this type. This was despite the notice sent on 26 February 2007 saying that members could request a printed copy of the proposed new rules by telephoning or emailing Ms Weston. (c) The Objector’s Submissions 149 The objector submitted that: (i) Providing members with advice that a copy of the proposed rules could be obtained from Ms Weston did not meet the requirements of clause 31. (ii) What was said in the notice about the purpose and effect of the rules was inaccurate. The notice said the rule alterations were proposed to be made to be consistent with the requirements of the Act for registration. Those requirements are set out in s55 and s56 of the Act. It was contended that a number of changes from the constitution to the rules went beyond what was so required. The objector pointed to the following: (1) The power of the members assembled in the annual or special general meetings was substantially reduced, compared to that of the council, in the manner described earlier. (2) The constitution had provided, by clause 14.6, that there would be an election for members of council within 90 days of the date of the organisation enrolling its 200th member. The applicant asserted it had enrolled more than 200 members shortly after 20 February 2007. (Mr Strickland’s witness statement at [108]). Had the constitution and clause 14.6 remained in force, an election would have fallen due some time in late May or early June 2007. By contrast, the rules contained no such requirement for an election, and extended to the end of December 2008 (that is by about 19 months) the period before which the members of the council and the executive were to face election (rule 44). (3) The council gained the power to impose a levy on all members under rule 12, but no such power existed under the constitution. The amount of the levy was uncapped. (4) Under the constitution clause 13.2, a special general meeting could be called by 15% of the members. Under the rules such a meeting could only be called by a petition signed by 50 members (rule 28(b)). (5) Changes were made to the eligibility rule of the association; clause 5 of the constitution differed from rule 4. (d) The Applicant’s Submission 150 In response the applicant submitted the notice accommodated the purposes of the giving of a notice of a meeting to members in accordance with the authorities cited. It was submitted the notice set out the three resolutions to be passed and there was no requirement in the constitution for the effects of the proposed amendments to be explained. It was submitted the notice relevantly advised members that the constitution would be replaced in its entirety by the rules and members could request a copy of the rules by making contact with Ms Weston. Accordingly they could be easily obtained. It was submitted the members were given an adequate opportunity to obtain a copy of the rules and decide whether to attend the meeting, to consider their attitude to the matters proposed to be discussed and prepare for discussion should they wish to be so involved. Ms Weston in her witness statement at [19] said that 11 members asked for and were provided with a copy of the proposed rules. It was submitted the statement in the notice about the purpose of resolution 1 was not intended to supplant the prior invitation to members to obtain a copy of the rules and the notice was not misleading. It was merely a concise description of the need for resolution 1. (e) The Objector’s Reply 151 In reply the objector’s counsel submitted that although what was said in the notice about the purpose of the meeting and its intended effect did not supplant the prior invitation to obtain a copy of the rules, it may have deflected somebody from doing so because it tended to suggest the nature of the changes and gave the impression that the changes were only dealing with technical matters to do with registration (T263). (f) Analysis and Conclusion on Alleged Invalidity 5 152 The alleged invalidity is to be determined by what the constitution required. The notice was required to comply with both clauses 13.3 and 31. This is because there was a notice being given of a special general meeting and at the special general meeting it was proposed that there be changes to the constitution. 153 In accordance with clause 31 the notice advised members of the motion to amend the constitution by its replacement with the rules. What clause 31 required however was more than this. The provision of a “notice of motion of the amendment” was required. The notice did not do that in its terms. To do so would require for example the proposed substituted rules to be provided. The applicant contends this was at least in effect complied with by the members being given an opportunity to obtain the rules if they wished to do so. This is a narrow point which is difficult to resolve. In the end I do not think the Full Bench is required to determine it because in my opinion and in any event the requirements of clause 13.3 of the constitution were not satisfied. 154 Clause 13.3 says that the “details” of the matters for which the special general meeting “has been called” be provided to members. What is necessary to fulfil the provision of “details” will vary from case to case. There is some inherent flexibility in the application of the rule. The required content of the notice will depend upon the nature, substance and effect of the matters for which the special general meeting has been called. Clause 13.3 has a purposive element in the sense that the 1836 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. members are to be provided with the details of those things which form the reason for the calling of the meeting. Deciding whether this has been done requires an evaluative judgment. 155 In my opinion the “details” were partially but not adequately provided by the notice. The notice said the constitution was to be replaced by the rules and provided a method by which members could obtain a copy of the rules. The purpose of the meeting was conveyed by the setting out of the three proposed resolutions and the reasons given for resolution 1. This said the purpose of the change to the rules was “to be consistent with the requirements of [the Act] in order to allow the [applicant] to apply for registration as an industrial organisation”. The submissions of the objector demonstrate however that the change from the constitution to the rules went beyond this purpose. 156 In my opinion to comply with clause 13.3 additional details needed to be provided including at least a summary of the nature and extent of the additional changes and the reasons for them. Without providing these details, members were not given an adequate opportunity to decide whether or not they wished to obtain a copy of the rules and/or attend at or contribute to the meeting. Merely providing the means by which the members could work this out for themselves did not give them the “details of the matters to which the special general meeting has been called”. 157 Accordingly, in my opinion alleged invalidity 5 is established. Conclusion – Dismissal of Application 158 For the reasons I have given in my opinion alleged invalidities 1, 2, 3 and 5 have been established. Accordingly the application must be dismissed and an order will issue to this effect. SMITH SC: 159 I have had the benefit of reading the reasons for decision of his Honour the Acting President. I respectfully agree and have nothing to add. SCOTT C: 160 I have had the benefit of reading the reasons for decision of his Honour the Acting President. I respectfully agree and have nothing to add. 2008 WAIRC 01286 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES WESTERN AUSTRALIAN PRINCIPALS' FEDERATION APPLICANT -and- STATE SCHOOL TEACHERS' UNION OF WESTERN AUSTRALIA (INC) OBJECTOR CORAM FULL BENCH THE HONOURABLE M T RITTER, ACTING PRESIDENT SENIOR COMMISSIONER J H SMITH COMMISSIONER P E SCOTT DATE WEDNESDAY, 20 AUGUST 2008 FILE NO FBM 3 OF 2007 CITATION NO. 2008 WAIRC 01286 Decision Application dismissed Appearances Applicant Mr A J Power (of Counsel) and with him Mr S Kemp (of Counsel) Objector Mr M Bromberg SC (of Counsel) and with him Mr T Borgeest (of Counsel) Order This matter having come on for hearing before the Full Bench on 5 May 2008, 6 May 2008, 8 May 2008, 9 May 2008, 12 May 2008, 13 May 2008, 3 June 2008, 5 June 2008 and 6 June 2008 and having heard Mr A J Power (of Counsel) and with him Mr S Kemp (of Counsel) on behalf of the applicant and Mr M Bromberg SC (of Counsel) and with him Mr T Borgeest (of Counsel) on behalf of the objector, and reasons for decision having been delivered on 20 August 2008, it is this day, 20 August 2008, ordered that the application is dismissed. By the Full Bench (Sgd.) M T RITTER, [L.S.] Acting President. 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1837 FULL BENCH—Procedural Directions and Orders— 2008 WAIRC 01296 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES EDWARD MICHAEL APPELLANT -and- DIRECTOR GENERAL, DEPARTMENT OF EDUCATION AND TRAINING RESPONDENT CORAM FULL BENCH THE HONOURABLE M T RITTER, ACTING PRESIDENT CHIEF COMMISSIONER A R BEECH COMMISSIONER P E SCOTT DATE TUESDAY, 26 AUGUST 2008 FILE NO/S FBA 27 OF 2006 CITATION NO. 2008 WAIRC 01296 Decision Directions hearing adjourned Appearances Appellant In person Respondent Ms R Hartley (of Counsel), by leave Order This matter having come on for a directions hearing before the Full Bench on 26 August 2008, and having heard Mr E Michael on his own behalf as appellant, and Ms R Hartley (of Counsel), by leave, on behalf of the respondent, it is this day, 26 August 2008, ordered that: 1. The directions hearing be adjourned to Tuesday, 28 October 2008 at 10.30am. By the Full Bench (Sgd.) M T RITTER, [L.S.] Acting President. PRESIDENT—Unions—Matters dealt with under Section 66— 2008 WAIRC 01342 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES ROBERT MCJANNETT APPLICANT -AND- KEVIN REYNOLDS, SECRETARY - THE CONSTRUCTION FORESTRY MINING & ENERGY UNION OF WORKERS FIRST RESPONDENT -AND- DARREN KAVANAGH, SAFETY OFFICER - THE CONSTRUCTION FORESTRY MINING & ENERGY UNION OF WORKERS SECOND RESPONDENT -AND- THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS THIRD RESPONDENT -AND- ELECTORAL COMMISSIONER FOR WESTERN AUSTRALIA FOURTH RESPONDENT CORAM THE HONOURABLE M T RITTER, ACTING PRESIDENT DATE THURSDAY, 4 SEPTEMBER 2008 FILE NO/S PRES 2 OF 2008 CITATION NO. 2008 WAIRC 01342 1838 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. Decision Order issued Appearances Applicant Mr D Howlett (of Counsel), by leave First Respondent Mr T Borgeest (of Counsel), by leave and with him Mr S Millman (of Counsel), by leave Second Respondent Mr T Kucera (of Counsel), by leave Third Respondent Mr G MacLean (of Counsel), by leave on behalf of the Construction, Forestry, Mining and Energy Union of Workers Fourth Respondent Mr R Bathurst (of Counsel), by leave on behalf of the Electoral Commissioner for Western Australia Order This matter having come on for hearing before the Acting President on 4 September 2008, and having heard Mr D Howlett (of Counsel), by leave on behalf of the applicant, Mr T Borgeest (of Counsel), by leave and with him Mr S Millman (of Counsel), by leave on behalf of the first respondent, Mr T Kucera (of Counsel), by leave on behalf of the second respondent, Mr G MacLean (of Counsel), by leave on behalf of the third respondent and Mr R Bathurst (of Counsel), by leave on behalf of the fourth respondent, it is this day, 4 September 2008, ordered that: 1. The application by the applicant for an order that the closure of nominations for the election of officers of the third respondent be postponed to 12pm on 8 September 2008, is dismissed. 2. The Electoral Commissioner for Western Australia be joined as a party to the application. 3. The Construction, Forestry, Mining and Energy Union of Workers be joined as a party to the application. 4. Any application by the applicant to seek leave to amend the application be in accordance with reg 17 of the Industrial Relations Commission Regulations 2005 and be filed and served by 4:00pm on 11 September 2008. 5. The hearing of any such application be heard on a date to be fixed. (Sgd.) M T RITTER, [L.S.] Acting President. DECLARATIONS— 2008 WAIRC 01371 REGARDING THE DECISION TO DISCIPLINE AND REPRIMAND THE EMPLOYEE WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES PETER HANS WEYGERS APPLICANT -v- DEPARTMENT OF EDUCATION AND TRAINING RESPONDENT CORAM COMMISSIONER P E SCOTT HEARD WEDNESDAY 17 OCTOBER 2007, WEDNESDAY 6 FEBRUARY 2008, MONDAY 31 MARCH 2008, WEDNESDAY 4 JUNE 2008 DELIVERED FRIDAY, 5 SEPTEMBER 2008 FILE NO. APPL 118 OF 2006 CITATION NO. 2008 WAIRC 01371 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1839 CatchWords School psychologist - Breach of discipline – investigation – Discovery, inspection and production of documents – Access to documents – Freedom of Information – burden of proof – failure to disclose material information – failure to disclose relevant material – denial of natural justice/procedural fairness - disciplinary process invalid and rendered void – Public Sector Management Act 1994 ss 9(a), (c), 78(2), 80(a), (b)(ii), (c), 81(1), 86(4) and (8)(a), Public Sector Management (General) Regulations 1994, 15-20, Western Australian Public Sector Code of Ethics principles 2 and 3, Customer Service: Harassment and Bullying of the Department’s Staff Conduct Policy, ss 1 and 5.2, Education Department Staff Conduct Policy, Education Department Sexual Harassment Resolution for Employees and Students Result Declaration that findings and penalty are a nullity Representation Applicant Mr I Viner QC and Mr D Wee (both of counsel) Respondent Mr R Andretich (of counsel) Reasons for Decision 1 The applicant Peter Hans Weygers has referred to the Western Australian Industrial Relations Commission pursuant to s 78(2) of the Public Sector Management Act 1994 (the PSM Act) the respondent’s decision made under s 86(8)(a) of the PSM Act to find him guilty of committing breaches of discipline. He seeks orders that the decision and the consequent penalties imposed on him being a reprimand, a fine and a reduction in the level of classification be nullified. 2 The Notice of Application was filed on 27 October 2006. The grounds for the application as amended on 17 October 2007 are: “AMENDED GROUNDS OF APPEAL The findings by an inquiry made pursuant to section 86 (4) of the Public Sector Management Act 1994 that the Appellant had committed a breach of discipline (“the Inquiry”) 1. (a) on 17th February 2004 by sexually harassing Ms Fiona Kelly and making inappropriate verbal comments; and (b) on 17th February 2004 by making inappropriate verbal comments of a sexual nature to Ms Amanda Pickersgill; and (c) on 17th February 2004 by making inappropriate verbal comments of a sexual nature to Ms Fiona Kelly; and (d) on 17th February 2004 by making inappropriate verbal comments of a sexual nature to Ms Carolyn Horrocks were each made wrongly in law and in fact in that: As to each of the alleged breaches of discipline: (a) on a proper consideration of the whole of the evidence the Inquiry could not be satisfied on the balance of probabilities the evidence established: (i) that the Appellant spoke the words complained of; or (ii) that the circumstances disclosed a breach of discipline had been committed; and (b) any words spoken by the Appellant on the occasions complained of did not amount to sexual harassment, or inappropriate verbal comments or inappropriate verbal comments of a sexual nature amounting to a breach of discipline; and (c) the Inquiry did not review or did not properly review the facts gathered during the investigation carried out by the investigation directed by the Director General pursuant to section 81 (2) of the Public Sector Management Act 1994; and (d) the Inquiry failed to consider all relevant evidence relating to each charge, namely any prior statements by the complainants or others relating to the facts and circumstances upon which the Inquiry relied relating to the conduct of the Appellant alleged to be a breach of discipline; and (e) the Inquiry failed to properly examine the reliability of the evidence presented to it in respect of each alleged breach of discipline or the credibility of the persons to whom or in respect of whom the Appellant was alleged to have made inappropriate verbal comments; and (f) the Inquiry applied a wrong burden of proof by imposing a burden of proof upon the Appellant when the burden of proof was upon the employing authority charging the Appellant with each alleged breach of discipline. (g) The penalties to be imposed upon the Appellant are excessive in that it was beyond a sound exercise of discretion in all the circumstances of the case. 1840 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. (2) (a) Despite requests by the Appellant’s solicitors the Inquiry denied the Appellant natural justice by failing to disclose to the Appellant statements made by complainants investigated by Mr Joe Baskwell which led to his report dated 20 May 2005 or to disclose to the Appellant statements made by the complainants the subject of the Inquiry by Mr Peter Burgess. Particulars 1. By letter dated 19 April 2004, Chan Galic, solicitors for the Appellant, requested the Department to provide to them: (i) any statements in your possession by Fiona Kelly, Amanda Pickersgill and Carolyn Horrocks outlining the complaints made and any correspondences relating to the alleged complaints; and (ii) any statements and correspondences by any persons who witnessed the alleged comments complained of. 2. By letter dated 23 April 2004 the statements requested being, as the Department’s letter stated, “any correspondence relating to the alleged complaints”. 3. Despite FOI requests the Department still refuses to provide the requested statements to the Appellant. (b) The denial of natural justice voids the Inquiry and all action taken by the Department on the basis of it.”” 3 It is noted at this point that it is necessary, in examining the issues, to set out and deal with the detail of the complaints made against Mr Weygers because of the nature of the challenges raised by him. Those complaints make reference to and name certain students and their parents. I intend to refer to those persons with letters to identify them as it is inappropriate to record their names here. Background 4 The history of this matter commenced with a visit by Mr Weygers in his capacity as School Psychologist employed by the respondent to Glendale Primary School on 17 February 2004. Complaints were made against him by a number of the school’s staff. The issues were first put to Mr Weygers by Mr Paul Albert, Director General of the Department of Education and Training in a letter dated 22 March 2004 in the following terms: “From information that has been brought to my attention, I suspect that you may have acted in a manner which constitutes a breach of discipline pursuant to section 80 of the Public Sector Management Act 1994 (WA) (“Act”). Under the provisions of the Act, an employee must be notified in writing of the nature of the allegations made against him or her, which are relevant to the suspected breach of discipline. Specifically, it is alleged that: 1. On 17 February 2004 at Glendale Primary School, you sexually harassed Ms Fiona Kelly, Deputy Principal, and made inappropriate verbal comments. By way of further clarification, it is claimed that whilst in the staff room you said to Ms Kelly “Haven’t you become a beautiful, flourishing woman now. You’re a mother now and so womanly, I was always in love with the younger you and the wet look that you wore with your hair, like you’re wearing now”, or words to that effect. You made these comments whilst looking Ms Kelly up and down, making her feel extremely uncomfortable. If this allegation is proven, it will constitute a breach of discipline pursuant to sections 80(a) (b)(ii) and (c) and is also in breach of: a) sections 9(a) and (c) of the Act; b) principles two and three of the Western Australian Public Sector Code of Ethics; c) sections 1 and 5.2 (Customer Service: Harassment and Bullying) of the Department’s Staff Conduct policy; and d) parts one and two of the Department’s Sexual Harassment Resolution for Employees and Students policy. 2. On 17 February 2004 at Glendale Primary School you made inappropriate verbal comments of a sexual nature to Ms Amanda Pickersgill, a teacher. By way of further clarification, it is claimed that when speaking with Ms Pickersgill in the school staff room following a case conference regarding (A), a student, you referred to (A’s) mother, (B), as “the type of woman that back then, 1970s, I would have had sex with – great sex – no emotion attached”, and that “they (all women at the Youth Hostels) are all the same”, or words to that effect. You also stated that “I would like to do home visits with her, but I can’t because she could just say I sexually assaulted her and then it would be her word against mine”, or words to that effect. If this allegation is proven, it will constitute a breach of discipline pursuant to sections 80(a) (b)(ii) and (c) and is also in breach of: a) sections 9(a) and (c) of the Act; b) principles two and three of the Western Australian Public Sector Code of Ethics; 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1841 c) sections 1 and 5.2 (Customer Service: Harassment and Bullying) of the Department’s Staff Conduct policy; and d) parts one and two of the Department’s Sexual Harassment Resolution for Employees and Students policy. 3. On 17 February 2004 at Glendale Primary School, you made inappropriate verbal comments of a sexual nature to Ms Fiona Kelly, Deputy Principal. By way of further clarification it is claimed that during a discussion with Ms Kelly regarding a student, (C), whom you had both known when she was 11 years old at Duncraig Primary School, you stated that (C) was “Marilyn Monroesque and I would like to go for her, although she may be too much of a handful for me”, or words to that effect. If this allegation is proven, it will constitute a breach of discipline pursuant to sections 80(a) (b)(ii) and (c) and is also in breach of: a) sections 9(a) and (c) of the Act; b) principles two and three of the Western Australian Public Sector Code of Ethics; c) sections 1 and 5.2 (Customer Service: Harassment and Bullying) of the Department’s Staff Conduct policy; and d) parts one and two of the Department’s Sexual Harassment Resolution for Employees and Students policy. 4. On 17 February 2004 at Glendale Primary School, you made inappropriate verbal comments of a sexual nature to Ms Carolyn Horrocks, a preprimary teacher. By way of further clarification, it is claimed that during Ms Horrocks’ discussions with you regarding a student, (D), you looked at (D’s) enrolment details and stated, “mum’s at home, dad’s a real estate agent, he’s obviously touching her up”, or words to that effect. If this allegation is proven, it will constitute a breach of discipline pursuant to section 80(a) (b)(ii) and (c) and is also in breach of: a) sections 9(a) and (c) of the Act; b) principles two and three of the Western Australian Public Sector Code of Ethics; c) sections 1 and 5.2 (Customer Service: Harassment and Bullying) of the Department’s Staff Conduct policy; and d) parts one and two of the Department’s Sexual Harassment Resolution for Employees and Students policy. Disciplinary action may be taken against you if any, or all, of the allegations are proven. In accordance with section 81(1) of the Act, I am providing you with an opportunity to submit a written explanation in relation to the above matters. Please ensure your submission is received no later than the close of business within ten (10) working days from the date of receipt of this letter. Please address your submission, marked ‘Private and Confidential’ to the Manager, Complaints Management Unit, Department of Education and Training, 151 Royal Street, East Perth WA 6004. After considering the explanation provided by you, I may, if the explanation is sufficient, take no further action. A formal investigation will however be initiated if, after considering your explanation, I continue to suspect that you have committed a breach of discipline. An investigation will also be undertaken in the event that no submission is received from you by the abovementioned date. Please find enclosed a copy of the relevant sections of the Act, which set out the various ways in which this matter could proceed, depending on your responses and the findings that are made. I also enclose a copy of section 9 of the Act, the Western Australian Public Sector Code of Ethics; the Department’s Discipline Policy, Procedures and Guidelines; Staff Conduct and Sexual Harassment Resolution for Employees and Students policies for your information. Please be advised that confidential support services are available to employees of the Department and their immediate family through an Employee Assistance Program. Should you wish to avail yourself of these services, please contact Prime Employee Assistance Services on 9446 0800 or 1800 674 188 for regional areas. If you have any questions in relation to this matter, please do not hesitate to contact Ms Pam Stuckey, R/Consultant, Complaints Management Unit on 9264 5722.” 5 On 19 April 2004 Mr Weygers’ solicitors, Chan Galic, wrote to the respondent in the following terms: “We wish to advise that we act for Mr Peter Weygers. Our client has provided us with a copy of a letter from Mr Paul Albert, the Director General of the Department of Education and Training dated 22nd March 2004. The letter outlines several allegations against our client. Our client denies that his conduct in anyway breached any provisions of:- (i) section 9(a) and (c) of Public Sector Management Act 1994 (WA); 1842 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. (ii) principles 2 and 3 of the Western Australian Public Sector Code of Ethics; (iii) sections 1 and 5.2 (Customer Service: Harassment and Bullying) of the Department’s Staff Conduct Policy; (iv) or parts 1 and 2 of the Department’s Sexual Harassment Resolution for Employees and Students policy. (“the Provisions”) With respect to each of the separate allegations made, our client responds as follows;- 1. Alleged comments made to Ms Fiona Kelly, Deputy Principal of Glendale Primary School on 17th February 2004 Our client denies that the words in italics were used by him during the conversation with Ms Fiona Kelly. Our client admits that he may have used words or phrases such as “mother”, “so womanly” and “wet hair” but that there was nothing untowardly intended by the use of the said words and phrases. The context in which the said words and phrases were used were also not capable of making Ms Fiona Kelly feel uncomfortable or uneasy and our client denies that the conversation he had with Ms Fiona Kelly could contravene the Provisions in any way. Our client also refutes the allegation that he was “looking up and down” at Ms Kelly during the conversation or that there was anything in his demeanour which could have made Ms Kelly feel uncomfortable. 2. Alleged comments made to Ms Amanda Pickersgill, Teacher at Glendale Primary School on 17th February 2004 Our client specifically denies saying anything about a (B), anything about woman(sic) in Youth Hostels being the same and discussing anything relating to home visits. He otherwise denies that he made the alleged comments. Our client did discuss youth hostels in general with Ms Pickersgill but reiterates that nothing which he said during the conversation could have constituted a breach of the Provisions. 3. Alleged comments made to Ms Fiona Kelly , Deputy Principal of Glendale Primary School on 17th February 2004 about a (C) Our client admits that he had a generalised conversation with Ms Fiona Kelly about an unnamed student whom our client assumed was (C) whom both Ms Kelly and our client dealt with in the past. Our client otherwise denies that anything which he said during the conversation could have breached the Provisions. 4. Alleged comments made to Ms Carolyn Horrocks , Pre Primary Teacher of Glendale Primary School on 17th February 2004 Our client may have had a general conversation about a student by the name of (D )with Ms Horrocks but is unable to recall whether this is the case. Our client however denies that the(sic) made the alleged comments to Ms Horrocks. It is our opinion that there was nothing in our client’s behaviour and conduct during the conversations with the above persons that would warrant any action being taken by the Department. We would however be grateful if you could provide particulars as to how each of the Provisions were alleged(sic) breached by each of the alleged comments complained of. Could you please also provide us with copies of;- (i) any statements in your possession by the above persons outlining the complaints made and any correspondences relating to the alleged complaints; and (ii) any statements and correspondence by any persons who witnessed the alleged comments complained of. Could you please also direct all further communications on the matter to our office.” 6 It is noted that this letter sought copies of statements and correspondence in the respondent’s possession in respect of the complaints. 7 The respondent replied on 30 April 2004 advising: 1. that notwithstanding the terms of Chan Galic’s letter, a formal investigation would be initiated; 2. that Mr Joe Baskwell had been appointed to undertake the investigation to establish the facts. He would do so by conducting interviews and obtaining documentation, and would then prepare a report for the respondent’s consideration; 3. that the possible findings from the investigation were that there had been no breach of discipline, or that there had been a minor or a serious breach of discipline; 4. of the consequences of each of those possible findings; 5. that confidential support services were available to Mr Weygers. 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1843 8 The investigation was then conducted. By letter dated 5 August 2005, Alby Huts, Executive Director Human Resources of the Department wrote to Mr Weygers, advising that the investigation had been concluded and a report made to him as he had delegated responsibility for addressing disciplinary matters. The findings of the investigation were that it appeared that Mr Weygers had committed serious breaches of discipline in respect of each of the allegations set out in the letter of 22 March 2004, except in respect of: 1. the particular in the second allegation that Mr Weygers is said to have stated “I would like to do home visits with her but I can’t because she would just say I sexually assaulted her and then it would be her word against mine”, or words to that effect. Mr Huts said he found no basis for further action in relation to that particular and that it fell away. 2. In respect of allegation 4, rather than the particular statement “‘mum’s at home, dad’s a real estate agent, he’s obviously touching her up,’ or words to that effect” it was found that the conduct was particularised as him stating “‘somebody’s touching her up’ or words to that effect”. 9 Each of the matters was said to be a breach of discipline by reference to the various sections of the PSM Act, Code of Ethics and policies set out in the letter of 23 March 2004. 10 Mr Huts’ letter went on to charge Mr Weygers with committing breaches of discipline based on those findings. The letter advised that if any of the charges was proven, it would constitute a breach of the various sections of the PSM Act, the Code of Ethics and the relevant policies, and would constitute an act of misconduct under s 80(c) of the PSM Act. Mr Weygers was to state in writing within ten working days of receipt of the letter whether he admitted or denied the truth of the charges. The letter also advised of the disciplinary action which might be taken against him if he admitted the charges and they were found to be proved, and that if he denied the charges, Mr Huts may hold, or direct someone to hold, an inquiry into the charges. He was also informed that if no breaches of discipline were found then no further action would be taken. The letter also says that enclosed was a copy of the report of the investigator, Mr Baskwell, for Mr Weygers’ information. 11 By letter dated 16 August 2005, Chan Galic advised that: “Mr Weygers wishes to:- (i) deny the truth of each and every Alleged Charge in Mr Huts(sic) letter of 5th August 2005; and (ii) re iterate(sic) that he will continue to vigorously defend himself against the Alleged Charges at any disciplinary inquiry or special disciplinary inquiry. Finally, please provide us with a copy of Mr Joe Baskwell’s report to the Department as a copy was not enclosed with the letter from Mr Huts.” 12 It would appear that Mr Baskwell’s report to the Department was provided to Mr Weygers’ solicitors as a letter dated 1 September 2005 from Mr Weygers’ solicitors makes reference to that report having been perused and noted that Mr Weygers reiterated his denial of the truth of each and every allegation. 13 By letter dated 8 September 2005, Mr Huts wrote to Mr Weygers, care of his solicitors, noting his denials and indicating that if each of the charges was proven it would constitute an act of misconduct pursuant to s 80(c) of the PSM Act and breaches as set out above. The letter advised that in accordance with s 86(4) of the PSM Act Mr Peter Burgess had been directed to hold a disciplinary inquiry into the charges. It also set out other information about the objective of the inquiry, that the inquirer would prepare a report and that if the inquirer found that a breach of discipline had been committed, what action the respondent may take. The inquirer would “shortly contact (Mr Weygers) to discuss the steps to be taken in the inquiry and of any interviews or meetings (Mr Weygers) would be requested to attend.” 14 Also dated 8 September 2005 is the letter from Mr Huts to Mr Burgess regarding Mr Burgess conducting the disciplinary inquiry. The letter is in the following terms: “I refer to the above matter and, in particular, to your conversation with Ms Pam Stuckey, Consultant, Complaints Management Unit, regarding you holding this disciplinary inquiry. In accordance with section 86(4) of the Public Sector Management Act 1994 (“Act”), would you please hold a disciplinary inquiry into the charge and prepare a report for my consideration. The report should include your finding and recommendation, as required by section 86(8) of the Act. Please provide your report directly to me by close of business twenty (20) working days from the date of receipt of this letter. I have enclosed a copy of the relevant information gathered to date in this matter for your information (emphasis added). Please ensure that, when submitting your report and associated accounts, you use the inquiry reference number as stated above. Please be advised that a copy of your report will be provided to the Corruption and Crime Commission at the conclusion of the discipline process. In addition, the employee may receive a copy of the report at a subsequent stage in the process. I will advise the employee that you will contact him shortly to discuss the steps to be taken in the inquiry and of any interviews or meetings that he will be requested to attend. Thank you for agreeing to hold this disciplinary inquiry. Should you require any assistance with procedural aspects of the inquiry, please contact Ms Stuckey on 9264 5722.” (Exhibit A1) 15 Mr Burgess gave evidence as to what documents may have been enclosed with the letter. That evidence will be dealt with in detail later in these Reasons. 1844 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. 16 By letter dated 31 March 2006, Mr Huts wrote to Mr Weygers care of his solicitors advising that Mr Burgess had completed the disciplinary inquiry and had submitted a report to him. He found that Mr Weygers had committed a breach of discipline in respect of each of the four charges. It is noted that in respect of charge 4, the words used by Mr Weygers were said to be ‘“somebody’s touching her up” or words to that effect’. What was referred to in the letter of 31 March 2006 was that Mr Weygers had said ‘“somebody is obviously touching her up” or words to that effect’ and each breach of discipline was found by the inquirer to have been committed by Mr Weygers. Mr Weygers was invited to make a submission as to the penalty proposed by Mr Huts. 17 By letter dated 6 October 2006, Kim Ward, Acting Executive Director, Human Resources for the respondent advised Mr Weygers of the penalties applied to him of a reprimand, a fine and transfer. 18 Of particular significance in this matter is that in addition to the request made by Mr Weygers’ solicitors in the letter to the respondent dated 19 April 2004 for copies of statements and correspondence relating to the alleged complaints, Mr Weygers’ solicitors have made a number of similar requests and applications for access to those documents. These were denied, except in some limited circumstances and when a copy of Mr Baskwell’s report was provided by letter dated 1 September 2005. 19 Mr Weygers complains that he was denied natural justice in that he says the respondent has failed to disclose to him written material related to the complaints made against him, and also has provided relevant information to the inquirer appointed by the respondent to investigate those complaints which may be adverse to him but which he is unable to respond to. 20 At a hearing on 17 October 2007, Mr Weygers raised an issue as to what material had been provided to Peter Burgess, who had been directed by the respondent to undertake a disciplinary inquiry regarding the complaints. The hearing was adjourned to enable Mr Burgess to be summoned to produce documents relating to the matter. A summons was issued, the documents produced and made available for examination by the parties. The hearing was reconvened on 6 February 2008 at which time Mr Burgess was examined about the documents and his treatment of them. The parties then provided written submissions and the hearing was reconvened on 4 June 2008 to enable them to address the issues. 21 It was agreed between the parties that the first issue which ought to be dealt with in this application relates to natural justice and disclosure and that if either of those points succeeds, then the disciplinary process is invalid and rendered void. 22 The applicant says that part of the difficulty associated with this matter is that the respondent sent to Mr Burgess for the purpose of his inquiry certain documents, however, it is not able to identify what documents were sent to him. The respondent has no record of which documents it provided to Mr Burgess. Accordingly, Mr Burgess was summonsed to provide the documents he had within his records. Mr Burgess gave evidence on 6 February 2008 to the effect that he could not be sure that he then had all the documents which were sent to him by the Department. 23 Mr Burgess said in his evidence that when he received the summons, he went through all the documents he had in his possession including the letter of Mr Huts dated 8 September 2005 by which he was asked to undertake an inquiry into the allegations against Mr Weygers. The documents he has produced to the Commission, that were received from the Department, may have been received under cover of that letter but he may have requested some of the documentation himself – he cannot be sure and cannot say categorically what came with the letter or that everything he has came in that letter. 24 In addition, Mr Burgess gave evidence of his usual treatment of documents received by him for investigations or inquiries he conducts. He had been advised by the Department to not return to the Department the material which had been sent to him other than those documents which were included in his inquiry report. He says that when he has concluded an investigation or inquiry he disposes of the relevant documents. He has a very simple rule in the disposal of the documents - where a document has a staple in it, it is destroyed by being burnt in an open fire. Where the document does not have a staple he keeps that document and uses it along with all others as scrap paper for other purposes. Therefore all the documents that he has left happen to be those which do not have a staple. Mr Burgess says that he does not know what documents he received that were stapled and thus have been destroyed. He has checked and discovered that he had completed 59 investigations plus other assignments in the last two years and he simply cannot recall what was contained in the documents provided to him by the respondent for the purposes of the inquiry. The documents produced by him were those he has left and they were received as Exhibit A1. 25 Mr Burgess explained the process he uses in his investigation and the process he undertook in this case, including what documents and other materials he included within the report he provided to the respondent. Applicant’s Submissions 26 The parties provided written submissions to the Commission and spoke to those submissions. In respect of ground 2 of the Amended Grounds Mr Weygers submitted that the Department’s failure to disclose to him material information adverse to him and relevant to the charges of misconduct brought against him, rendered the inquiry void and therefore the decision of the Department to discipline him on the basis of that inquiry is said to be a nullity. 27 Mr Weygers notes that on 22 March 2004 he was notified of the allegations said to be relevant to the suspected breaches of discipline and that on 19 April 2004 through his solicitors he requested disclosure of the information relating to those allegations. That request was for disclosure of “any statements in your possession by the above persons outlining the complaints made and any correspondence relating to the alleged complaints” and “any statements and correspondence by any person who witnessed the alleged comments complained of”. The respondent refused this request without specifying any reason. 28 On 18 March 2005 Mr Weygers made a Freedom of Information request for access to the information which had been refused by the Department and on 30 May 2005 the Department’s FOI unit refused disclosure saying that it had located eight pages relating to the request and that those pages were exempt from disclosure because they contained opinions and information about third parties that could reasonably be ascertained by the applicant in his position at the school. 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1845 29 Further requests for disclosure were refused. Notwithstanding the respondent’s refusal to provide disclosure of these documents, documents were provided to Mr Burgess for the purpose of his conducting the inquiry. Mr Weygers says: “The complaints and correspondence cannot be relevant to the charges entitling the inquirer, Burgess, to have access to them and to use them as part of the evidence upon which the inquirer finds, adverse to the Appellant, that the charges were proven but, at the same time in respect of the Appellant’s requests be found to be “inappropriate” for disclosure to the Appellant; that is to say, at one and the same time the Department considered the material was relevant to whether the Appellant was guilty of the charges but not relevant to the Appellant’s defence of the charges under inquire! The Department’s conflicting position is untenable.” (para 29 Applicant’s Submissions) 30 Mr Weygers says that the effect of non disclosure is that the withheld documents contain statements adverse to him, that those documents were known to and in the possession of what he describes as his accusers (being Mr Albert and Mr Huts) and to the inquirer, Mr Burgess, as decision maker, as well as to Mr Huts and Mr Ward, whose decisions directly led to him being disciplined (para 41 Applicant’s Submissions). Mr Weygers says that he “was thereby denied disclosure of material plainly adverse to him which was relied upon by Burgess as decision maker in finding the charges against (him) proven and, hence, relied upon by Huts and Ward in deciding to discipline him”. (para 42 Applicant’s Submissions) 31 Mr Weygers says that the law is that natural justice imposes an obligation on the decider of fact to disclose all evidence before them to the parties if that evidence was used in the decision (Official Solicitor to the Supreme Court v K. and another (1965) AC 201; Kioa and Others v West and another (1985) 159 CLR 550) (Kioa case). Where a decision maker is authorised to conduct an investigation or inquiry, evidence that is proposed to be used should be disclosed (Brighton Council v Compost Tasmania Pty Ltd (2000) 109 LGERA 190 at 198-199). Both Mr Burgess and Mr Huts (and Mr Ward in affirming the disciplinary measures imposed by Mr Huts) are said to have acted in breach of their obligations to provide Mr Weygers with procedural fairness. 32 The applicant says that it is not necessary for the person alleging the breach of natural justice to prove that material requiring disclosure actually affected the decision (Kioa and Others v West and another; and Judicial Review of Administrative Action, Aronson, Dyer and Groves, 3rd ed (Law Book Co 1994) page 511). The material requiring disclosure, being the complaints and correspondence of: (a) Fiona Kelly, being an email of 18 February 2004; (b) Amanda Pickersgill, being a signed complaint of 17 February 2004; (c) Perisse Taylor, correspondence of 19 February 2004; actually affected the decision by Mr Burgess and hence the decision by the respondent. Mr Weygers says that a decision made in breach of the rules of natural justice voids that decision (Ridge v Baldwin (1964) AC 40), and a decision made in breach of procedural fairness is a nullity; per Atkin LJ in R v Electricity Commissioners; ex parte London Electricity Joint Committee Company (1924) 1 KB 171. 33 Therefore, Mr Weygers says that the decision by Mr Burgess to find the charges against him proven and the decision by Mr Huts, affirmed by Mr Ward, to impose disciplinary sanctions upon him are a nullity and of no legal effect. Respondent’s Submission 34 The respondent says that the disciplinary process was conducted in accordance with the requirements of Part 5 of the PSM Act and that Part contains no statutory requirements as to the provision of documents. However the respondent accepts that the process requires the application of procedural fairness (Kioa and Others v West and another (1985) 159 CLR 550) per Mason J, at 583-584). 35 The respondent notes that Ms Pickersgill and Ms Kelly made written complaints and submitted them to the principal of Glendale Primary School, Ms Taylor, who referred those complaints to the respondent’s Complaints Management Unit. Ms Horrocks’ complaint was verbal. The four suspected breaches of discipline were contained within the respondent’s letter to the applicant of 22 March 2004 and he was called upon to respond to them. 36 The respondent says that at the outset of the process Mr Weygers was made aware not merely of the substance of the allegations contained in the written complaints of Ms Kelly and Ms Pickersgill but precisely the words and the conduct which the complainants found objectionable and these words and conduct were put to Mr Weygers for his response. 37 Mr Baskwell was appointed to conduct an investigation under s 81(2) of the PSM Act and his report of 20 March 2005 contained comprehensive statutory declarations by the complainants and these were provided to Mr Weygers and his solicitors by letter of 5 August 2005, or at least before he responded to the charges referred for inquiry. 38 The charges which were the subject of the inquiry were set out in the letter of 5 August 2005. The respondent says those charges are in the same terms of the letter of 22 March 2004 issued pursuant to s 81(1) which in turn is in the same terms as contained in the written complaints, and in Ms Horrocks’ verbal complaint. 39 The respondent says that “it can safely be said that the Applicant and his solicitors were made aware at the outset of the material contents of the written complaints in the same terms used in the documents prepared by Ms Kelly and Ms Pickersgill, and Ms Taylor insofar as Ms Horrocks is concerned (sic)”. The respondent asks “what more would have been disclosed if the documents were made available”. (para 11 Respondent’s Submissions) 40 The respondent says the procedural requirements for disciplinary proceedings are those required by the legislation and in the circumstances necessary to accord the employee procedural fairness including an entitlement to know the case that he or she must meet. This is said to entail the substance of adverse evidence being disclosed and the provision of an opportunity to deal with it (Kioa decision at 582, 615, 628 and 629). The respondent says there is no obligation to follow the procedures available in civil or criminal proceedings. Discovery, unless ordered, is not required to be given, however, the respondent accepts “that 1846 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. the substance of adverse evidence must be disclosed to the applicant in such a way that he can appreciate its meaning and be given an opportunity to respond to it. That obligation was met in relation to the disciplinary proceedings against the Applicant”. (Para 13 Respondent’s Submissions) 41 The respondent says there is no obligation to produce the actual documents in which the complaints of Ms Kelly and Ms Pickersgill were contained if the substance of those complaints was otherwise made known to Mr Weygers. The respondent says that in the circumstances the production of the documents would have added nothing. The respondent says that Mr Weygers must show that he could have submitted something of substance, which he has not done. The respondent refers to the decision of Lord Wilberforce in Malloch v Aberdeen Corporation [1971] 1 WLR 1578 at 1595 as follows: “The appellant has first to show that his position was such that he had in principle, a right to make representations before a decision was taken. But to show this is not necessarily enough, unless he can also show that if admitted to state his case he had a case of substance to make. A breach of procedure, whether called a failure of natural justice, or an essential administrative fault cannot give him a remedy in the courts, unless behind it is something of substance which has been lost by the failure. The Court does not act in vain…”. 42 The respondent says that the decision of Lord Guest (at 1591) and Lord Simon of Glaisdale (at 1600) are to the same effect. 43 The respondent says that Mr Weygers and his solicitors have now been provided with all the documents they requested and have not submitted, nor can they submit that Mr Weygers has not been made aware of something adverse, not previously known to him and which he would cause him to respond otherwise than he has in relation to the allegations. If the submission is that the inquirer otherwise erred that is an argument for another day. 44 The respondent also relies on Stead v State Government Insurance Commission (1986) 161 CLR 141 saying that the High Court held that no relief would be granted in respect of the denial of procedural fairness when according it in the circumstances would not affect the outcome. The respondent says there has been no denial of procedural fairness, but if there had been, it is clear that according it in the way raised by Mr Weygers could not have affected the outcome. 45 Accordingly the respondent says that it would have made no difference if the documentation and statements of the complainants had been provided. Issues and Conclusions 46 By his letter of 8 September 2005 to the inquirer, Mr Burgess, the respondent, through Mr Huts, provided information said in that letter to be relevant to the inquiry Mr Burgess was to undertake. Mr Burgess’ evidence indicates that the documents which are Exhibit A1, being the bundle of documents presented to the Commission by Mr Burgess in response to the summons, contained a number of documents but it would appear is not a complete record of the documents he received from the respondent being relevant information, and those documents may not be all of the documents he received as he may have requested some documents, and they were all treated the same in terms of his retention and disposal of them. 47 The documents Mr Burgess presented to the Commission include: 1. Many formal letters which deal with the forwarding within the Department of information relating to the process of establishing the investigation; 2. Correspondence to Mr Baskwell on his appointment to undertake the investigation; 3. Correspondence with Chan Galic regarding the process of the investigation; 4. Emails and medical certificates regarding Mr Weygers taking sick leave due to illness and injury and Mr Weygers’ unavailability for interview because of his illness and injury; 5. Letters from the Corruption and Crime Commission on 15 November 2004 and 5 January 2005 seeking information as to the progress of the complaints against the applicant and a file note of the response to the Corruption and Crime Commission; 6. Correspondence to Ms Taylor advising that the disciplinary investigation was continuing; 7. Correspondence between Chan Galic, the Department, and the investigators for the purposes of arranging for the investigators to interview Mr Weygers. (I note in passing that the process of this investigation was very lengthy. In fact it took an inordinate amount of time, at least partly due to Mr Weygers’ unavailability for interview and then due to his preparedness to attend to such an interview only in the presence of his counsel, who at that point was not available for many months. Eventually an interview was arranged for 26 April 2005 in the offices of Chan Galic solicitors, some 14 months after the incidents said to give rise to the investigation.) 8. An email of 13 May 2005 from Mr Baskwell to Ms Stuckey advising that the interview with the applicant had taken place and a draft statutory declaration had been despatched to him on 28 April 2005 but at that point no response had been received. 9. A letter to Mr Weygers care of his solicitors of 22 August 2005 enclosing a copy of the Baskwell report; 10. A letter of Perisse Taylor dated 18 February 2005 to Peter Denton said to be “an overview” of Ms Taylor’s concerns and her observations of what occurred on 17 February 2004 and 18 February 2004 at Glendale Primary School; 11. A letter to Pam (Stuckey) from Ms Taylor dated 15 March 2004 which is said to provide further clarification of the complaints outlined in her letter of 18 February 2004; 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1847 12. A document from Amanda Pickersgill of 17 February 2004 as to her complaint regarding Mr Weygers, and an email of 18 February 2004 from Fiona Kelly to Perisse Taylor setting out her complaint. 48 As noted earlier this bundle is not a complete record of those documents forwarded to and kept by Mr Burgess. The Law 49 The issue of the need to provide procedural fairness and the context of a statutory regime is dealt with in Re Railway Appeal Board Ex parte The Western Australian Government Railways Commission (1999) 21 WAR 1 by Malcolm CJ who said at 11: “A decision made or an action taken by a statutory body in breach of essential requirements of due process or in absence of jurisdiction is invalid and void. In Balmain Association Inc v Planning Administrator for the Leichhardt Council (1991) 25 NSWLR 615 at 637, Kirby P, Priestley and Handley JJA said: “The High Court has said repeatedly that a statutory power to affect rights, privileges and legitimate expectations must be exercised in accordance with the common law requirements of natural justice and procedural fairness unless Parliament has clearly indicated to the contrary: see, eg, Haoucher v Minister of State for Immigration & Ethnic Affairs (1990) 169 CLR 648 at 651-652, 678-679 . . . Something more than the repeal of earlier provisions for notice and a hearing is necessary to exclude the ordinary requirements of procedural fairness.” The principle to be extracted from the cases is that where, as here, a body or an employer is vested by statute with a jurisdiction of disciplinary action, a quasi-judicial function is vested which must be exercised in accordance with the statutory procedures and in compliance with the principles of natural justice. Obviously the former often embody the latter. To the extent that these requirements precondition the jurisdiction and are not complied with, the action is ultra vires and thus invalid or void ab initio: Ridge v Baldwin, per Lord Reid (at 66, 68, 72-73, 79-80); per Lord Morris of Borth-y-Gest (at 113-114, 117, 121, 122-123); Lord Hodson (at 132, 135-136); Lord Devlin (at 139); cf Lord Evershed (at 86, 91-92) and Lord Devlin (at 138, 140).” 50 The principle is affirmed in Kioa and others v West and another (1985) 159 CLR 550 at 584 where Mason J said: “The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.” The Statutory Scheme 51 The PSM Act and the Public Sector Management (General) Regulations 1994 (the Regulations) set out the process and requirements for dealing with disciplinary matters. 52 Section 9(a) and (c) of the PSM Act sets out General principles of official conduct in the following terms: “The principles of conduct that are to be observed by all public sector bodies and employees are that they — (a) are to comply with the provisions of — (i) this Act and any other Act governing their conduct; (ii) public sector standards and codes of ethics; and (iii) any code of conduct applicable to the public sector body or employee concerned; … (c) are to exercise proper courtesy, consideration and sensitivity in their dealings with members of the public and employees.” 53 The disciplinary process is set out in Division 3 – Disciplinary matters, of Part 5 Substandard performance and disciplinary matters of the PSM Act. Part 5 contains sections 80 and 92. Sections 82, 84, 87, 89 and 90 to 92 are not relevant to these matters 54 Section 80 - Breaches of discipline provides: “An employee who — (a) disobeys or disregards a lawful order; (b) contravenes — (i) any provision of this Act applicable to that employee; or (ii) any public sector standard or code of ethics; (c) commits an act of misconduct; (d) is negligent or careless in the performance of his or her functions; or (e) commits an act of victimisation within the meaning of section 15 of the Public Interest Disclosure Act 2003, commits a breach of discipline.” 55 Section 81 – Procedure when breach of discipline suspected provides: “(1) An employing authority may, when it suspects that a person has committed a breach of discipline whilst serving as an employee in its public sector body and has given the person such notice in writing of the nature of the suspected breach of discipline as is prescribed, give the person a reasonable opportunity to submit an explanation to the employing authority. 1848 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. (2) After having given the respondent the reasonable opportunity referred to in subsection (1), the employing authority may — (a) if it is not the Minister, investigate or direct another person to investigate; or (b) if it is the Minister, direct another person to investigate, the suspected breach of discipline in accordance with prescribed procedures. (3) A person to whom a direction is given under subsection (2) shall comply with that direction. (4) A direction shall not be given under subsection (2) to the Commissioner.” 56 Section 83 – Powers of employing authority other than Minister after investigation of alleged breach of discipline provides: “(1) If, following the investigation of an alleged breach of discipline under section 81, an employing authority which is not the Minister finds, whether as a result of its own investigation or that of a person directed under section 81(2)(a), that — (a) a minor breach of discipline was committed by the respondent, that employing authority may in accordance with prescribed procedures — (i) reprimand the respondent; (ii) impose on the respondent a fine not exceeding an amount equal to the amount of remuneration received by the respondent in respect of the last day during which he or she was at work as an employee before the day on which that finding was made; or (iii) both reprimand, and impose the fine referred to in subparagraph (ii) on, the respondent; (b) a serious breach of discipline appears to have been committed by the respondent, that employing authority shall cause the respondent to be charged in accordance with prescribed procedures with having committed that alleged breach of discipline; or (c) no breach of discipline was committed by the respondent, notify the respondent of that finding and that no further action will be taken in the matter. (2) For the purposes of this section, a breach of discipline committed as a result of disobedience to, or disregard of, a lawful order referred to in section 94(4) is a serious breach of discipline.” 57 Section 85 – Procedure if respondent objects to certain findings or actions provides: “If a respondent objects by notice in writing addressed to an employing authority — (a) to any finding by the employing authority under section 83 or 84 that he or she committed a minor breach of discipline; or (b) to any action taken by the employing authority in relation to him or her under section 83(1)(a) or 84(2)(b)(i), within 7 days after being notified in writing of that finding or action, as the case requires, that finding or action is cancelled by virtue of this section and the respondent may be charged in accordance with the prescribed procedures with having committed the alleged breach of discipline.” 58 Section 86 - Procedure when charge of breach of discipline brought provides: “(1) A charge under section 83(1)(b), 84(2)(b)(ii) or 85 shall — (a) be in writing; (b) contain the prescribed details of the alleged breach of discipline; and (c) require the respondent to indicate within such period of not less than 7 days as is specified in the charge whether or not he or she admits or denies the charge. (2) A respondent charged under section 83(1)(b), 84(2)(b)(ii) or 85 shall admit or deny the charge within the relevant period referred to in subsection (1)(c). (3) Subject to section 89, if a respondent admits a charge under subsection (2) and the employing authority finds the charge to be proved, the employing authority — (a) shall, if the charge is a charge of committing a breach of discipline consisting of disobedience to, or disregard of, a lawful order referred to in section 94(4), dismiss the respondent; or (b) may — (i) reprimand the respondent; (ii) transfer the respondent to another public sector body with the consent of the employing authority of that public sector body or, if the respondent is an employee other than a chief executive officer or chief employee, transfer him or her to another office, post or position in the public sector body in which he or she is currently employed; (iii) impose on the respondent a fine not exceeding an amount equal to the amount of remuneration received by the respondent in respect of the period of 5 days during which he or she was at work as an employee immediately before the day on which the finding of a breach of discipline was made; 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1849 (iv) reduce the monetary remuneration of the respondent; (v) reduce the level of classification of the respondent; or (vi) dismiss the respondent, or, except when the respondent is dismissed under subparagraph (vi), take action under any 2 or more of the subparagraphs of this paragraph. (4) If a respondent denies a charge under subsection (2) and the employing authority is not the Minister, the employing authority may — (a) hold, or direct a person to hold, a disciplinary inquiry into the charge in accordance with prescribed procedures; or (b) if it considers that a special disciplinary inquiry should be held into the charge, request the Minister to direct that a special disciplinary inquiry be held into the charge by a person named in that direction. (5) A directed person shall, subject to subsections (6) and (7), comply with the relevant direction given under subsection (4)(a). … (8) If a directed person finds at the conclusion of a disciplinary inquiry that — (a) a breach of discipline was committed by the respondent, the directed person shall submit that finding to the employing authority and recommend to the employing authority that it act in relation to the respondent under subsection (3) as if the respondent had admitted the charge under subsection (2); or (b) no breach of discipline was committed by the respondent, the directed person shall submit that finding to the employing authority and recommend to the employing authority that it notify the respondent of that finding and that no further action will be taken in the matter. (9) On receiving a finding and recommendation under subsection (8), the employing authority shall — (a) accept the finding; and (b) in the case of a recommendation made under — (i) subsection (8)(a) in relation to a charge of committing a breach of discipline consisting of disobedience to, or disregard of, a lawful order referred to in section 94(4), dismiss the respondent; (ii) subsection (8)(a) in relation to a charge other than a charge referred to in subparagraph (i), accept that recommendation and act accordingly in relation to the respondent, or decline to accept that recommendation and take such other action in relation to the respondent as could have been recommended under that subsection; or (iii) subsection (8)(b), accept that recommendation and act accordingly in relation to the respondent. (10) If an employing authority finds at the conclusion of a disciplinary inquiry held by itself that — (a) a breach of discipline was committed by the respondent, the employing authority shall act under subsection (3) as if the respondent had admitted the charge under subsection (2); or (b) no breach of discipline was committed by the respondent, the employing authority shall notify the respondent of that finding and that no further action will be taken in the matter. … (12) A direction shall not be given under this section to the Commissioner. (13) In this section — “directed person” means person directed under subsection (4)(a) to hold a disciplinary inquiry into the charge concerned; “disciplinary inquiry” means disciplinary inquiry held or directed to be held under subsection (4)(a).” 59 The Regulations provide further requirements in respect of the disciplinary process. Regulation 15 - Prescribed notice for purposes of section 81(1) of Act provides: “For the purposes of section 81(1) of the Act, the prescribed notice is notice of all the allegations made against the person referred to in that section which are relevant to the breach of discipline which the employing authority suspects that person of having committed.” 60 Regulation 16 - Prescribed procedures for purposes of section 81(2) of Act provides: “For the purposes of section 81(2) of the Act, the prescribed procedures in accordance with which a suspected breach of discipline is to be investigated are that the respondent is notified in writing – (a) that an investigation of the suspected breach of discipline is being initiated and of the purpose of that investigation; 1850 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. (b) that the investigation referred to in paragraph (a) will lead to a finding being made in respect of, and may lead to action being taken against, the respondent under Division 3 of Part 5 of the Act and of the range of possible findings and possible action; (c) of the steps which may be taken in the conduct of that investigation prior to the making of a finding, and the taking of any action, against the respondent; (d) of any interviews or meetings which the respondent is required to attend; and (e) of his or her right to have present during any interviews or meetings attended by the respondent a representative capable of providing advice to the respondent.” 61 Regulation 17 - Prescribed procedures for purposes of section 83(1)(a)(i), (ii) or (iii) of Act provides: “For the purposes of section 83(1)(a)(i), (ii) or (iii) of the Act, the prescribed procedures in accordance with which the action referred to in that section is to be taken against the respondent are that the respondent – (a) is to be notified in writing of the finding that a minor breach of discipline has been committed by the respondent; (b) is to be notified in writing of the action proposed to be taken under that section against the respondent; (c) is to be given a reasonable opportunity to make written or oral representations to the relevant employing authority concerning that action; and (d) is to be notified in writing of – (i) the action taken under that section against the respondent; and (ii) the right of objection under section 85 available to the respondent in respect of that finding or action. 62 Regulation 18 - Prescribed procedures for purposes of section 83(1)(b) and 85 of Act provides: “For the purposes of section 83(1)(b) and 85 of the Act, the procedures by which a respondent is to be charged with an alleged breach of discipline are that the employing authority must ensure, and must make a record of, the receipt of the written charge by the respondent.” 63 Regulation 19 - Prescribed details of breaches of discipline for purposes of section 86(1)(b) of Act provides: “(1) For the purposes of section 86(1)(b) of the Act, the prescribed details of the alleged breach of discipline are a written description of the breach of discipline with which the respondent is charged framed in such a manner and with such particulars of – (a) the alleged time and place of commission of that breach of discipline; (b) the other persons, if any, involved in committing that breach of discipline; (c) the person, if any, against whom that breach of discipline was committed; and (d) the property, if any, in respect of which that breach of discipline was committed, as are necessary to inform the respondent of the nature of that breach of discipline. (2) If the time or place of commission of an alleged breach of discipline is unknown, it is sufficient for the purposes of subregulation (1)(a) to give particulars of the period or area within which that breach of discipline was committed.” 64 Regulation 20 - Prescribed procedures for purposes of section 86(4)(a) of Act provides “For the purposes of section 86(4)(a) of the Act, the prescribed procedures in accordance with which a disciplinary inquiry is to be held are that the respondent is notified in writing – (a) that a disciplinary inquiry into the charge is being held and of the purpose of that disciplinary inquiry; (b) that the disciplinary inquiry referred to in paragraph (a) will lead to a finding being made, and may lead to action being taken, against the respondent under Division 3 of Part 5 of the Act and of the range of possible findings and possible action; (c) of the steps which may be taken in the conduct of that disciplinary inquiry prior to the making of a finding, and the taking of any action, against the respondent; (d) of any interviews or meetings which the respondent is required to attend; and (e) of his or her right to have present during any interviews or meetings attended by the respondent a representative capable of providing advice to the respondent.” 65 The purpose in reciting the relevant provisions of the PSM Act and Regulations is to examine the statutory requirements. These requirements are: 1. That when it suspects that a person has committed a breach of discipline, the employing authority must give the person “such notice in writing of the nature of the suspected breach of discipline as is prescribed” (s 81(1)). 2. The prescribed notice is “notice of all the allegations made against the person referred to in (s 81(1)) which are relevant in the (suspected) breach of discipline” (Regulation 15). 3. The person is to be given “reasonable opportunity to submit an explanation” (s 81(1)). 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1851 4. After the person has had that “reasonable opportunity”, the employing authority may investigate or direct another person to investigate the suspected breach “in accordance with prescribed procedures” (s 81(2)). 5. The “prescribed procedures” for the purposes of the investigation require that the person is notified in writing: (a) that an investigation is being initiated and its purpose; (b) that the outcome of the investigation will be a finding, and the action which may be taken against the person and of the range of findings and actions which may arise; (c) the steps which may be taken in the conduct of the investigation; (d) any interviews or meetings which the person is required to attend; and (e) the person’s right to have a representative present during any interviews or meetings (Regulation 16). 6. Section 83 sets out the powers of the employing authority after the investigation is concluded, including the penalties which may be imposed if a minor breach or a serious breach of discipline is found. 7. The person is then entitled to object in writing to the finding of a breach of discipline. If so, the finding is cancelled and the employee may be charged “in accordance with the prescribed procedures with having committed the alleged breach of discipline” (s 85). 8. The prescribed proceedings referred in s 85 are set out in Regulation 18 referred to earlier and requires the receipt of the written charge by the person to be recorded. 9. The charge is required to: (a) be in writing; (b) contain the prescribed details of the alleged breach of discipline; and (c) require the person to admit or deny the charge within a specified period (s 86). 10. The “prescribed details” to be contained in the charge are: “a written description of the breach of discipline with which the respondent is charged framed in such a manner and with such particulars of – (a) the alleged time and place of commission of the breach” (if the time or place is unknown “it is sufficient … to give particulars of the period or area within which that breach … was committed”); (b) any other person involved in committing the breach; (c) the person against whom the breach was committed “as are necessary to inform the respondent of the nature of that breach” (Regulation 19). 11. The procedure when the charge is brought then provides what is to happen if the person admits the charge and it is found to be proved depending on the nature of the breach (s 86(3)). 12. If the person denies the charge, the employing authority may hold, or direct a person to hold, a disciplinary inquiry into the charge “in accordance with prescribed procedures” (s 86(4)). The “prescribed procedures” mirror those relating to the investigation as set out in Regulation 16, referred to in point 5 above, except that reference is made to the “disciplinary inquiry” rather than to the “investigation” (Regulation 20). 13. A directed person shall comply with that direction (s 86(5)). 14. If the inquiry finds a breach of discipline has been committed, the finding is to be submitted to the employing authority along with recommended actions (s 86(8)). If no breach is found, that also is reported to the employing authority with a recommendation that the person be notified of the finding and that no further action will be taken. 15. The employing authority is required to accept the finding, and if the finding is of a breach, to impose the penalties specified according to the nature of the breach of discipline. If no breach is found, no further action is taken (s 86(9) and (10)). What information was provided to Mr Weygers? 66 By letter dated 22 March 2004, Mr Weygers was informed: 1. That Mr Albert suspected that he may have acted in a manner which committed a breach of discipline. 2. That the nature of the breaches was: (a) in respect of each alleged breach: (i) the time – 17 February 2004; (ii) the place – in the staff room at Glendale Primary School; (iii) the person against whom the breach was committed; - in breach 1 – Ms Fiona Kelly; - in breach 2 – Ms Amanda Pickersgill; - in breach 3 – Ms Fiona Kelly; - in breach 4 – Ms Carolyn Horrocks. (iv) the words attributed to him; 1852 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. (v) the sections of legislation, principles of a code, and the sections and parts of policies which his actions are said to have breached. 3. That if any of the allegations are proven, disciplinary action may be taken against him. 4. That he has an opportunity to submit a written explanation in relation to these matters. 5. The time for him to make that explanation is 10 working days. 6. If his explanation is sufficient, no further action will be taken. 7. If after considering his explanation, the employing authority continues to suspect that he committed the breach, then a formal investigation would be initiated. 67 Mr Weygers was provided with copies of the various pieces of legislation, codes and policies. 68 By letter of 19 April 2005, Mr Weygers responded, denying the alleged breaches, and particularising his response to each allegation, including noting what he denied saying and what he agreed he said. There is no suggestion that the particulars provided were inadequate to enable him to respond. He requested particulars as to how each of the provisions was allegedly breached by each of the alleged comments, and he sought statements by the complainants and any witnesses, and of any related correspondence. 69 Given Mr Weygers’ denial of the alleged breaches, the employing authority initiated an investigation and informed Mr Weygers that it had done so; that Mr Baskwell had been appointed to conduct the investigation; of the possible findings of the investigation; and the consequences of those possible findings (letter 30 April 2004). 70 The investigation was conducted and the results notified to Mr Weygers by letter of 5 August 2005, being that it appeared that he had committed the breaches; details of date, place, persons against whom the breaches were committed, the words attributed to him, and the sections of the legislation said to have been breached. He was notified that he was required to state in writing within 10 days whether he admitted or denied the truth of the charges. He was informed that if he admitted the charges and the employing authority found them to be proved, what actions may be taken. If he denied the charges an inquiry may be held, the purpose of such an inquiry and what would happen if the inquirer found no breach, or if the inquirer found a breach. A copy of the investigator’s report was supposed to be enclosed but appears not to have been, but was provided in time for Mr Weygers to respond on 1 September 2005 through his solicitors, saying Mr Joe Baskwell’s report had been perused. Mr Baskwell’s report enclosed statutory declarations of Mr Weygers; Robyn Oliver, Student Services Manager in the West Coast Education District, and formerly a Senior School Psychologist; Fiona Raewyn Kelly; Amanda McClelland Pickersgill and Caroline Susan Horrocks. 71 By letter dated 5 August 2005, Mr Weygers was charged. The charges were provided to Mr Weygers in writing, as previously, setting out the alleged time and place; the persons against whom the breach was committed; the words attributed to him; the sections of legislation, principles of a code, and the section and parts of policies which his actions are said to have breached. He was informed of the procedure to be applied and given an opportunity to respond. He responded, denying the breaches. The respondent then advised him that an inquiry would be conducted; that Mr Peter Burgess had been appointed to undertake the inquiry; the objective of the inquiry, and what would happen as a consequence of the possible alternative outcomes of the inquiry. He was informed that Mr Burgess would contact him with a view to discussing the steps to be taken. 72 The first aspect of complaint by Mr Weygers is that he was denied natural justice by not being provided with the statements and correspondence. The authorities require that natural justice be afforded a person the subject of the disciplinary process. The question in this case is whether Mr Weygers was denied natural justice by not having access to the statements and correspondence. 73 The statutory scheme set out earlier in these Reasons is very detailed. It is not an adversarial process, it is not one which allows the person against whom complaints are made to cross examine or to challenge witnesses other than by making his or her own statements and/or being interviewed by the person charged with finding the facts. It is a process of investigation, of gathering information, analysing and assessing the information and forming conclusions as to the facts. The inquiry process is the same. The legislative scheme requires the person to be provided with such information about the allegations of breaches of discipline as will enable the person to respond. The information to be provided includes, time and place, the person against whom the breach was committed as is “necessary to inform the respondent of the nature of that breach of discipline”. I conclude that it is a process designed to, and does, provide the person accused of the breach of discipline with natural justice. Yet it does not require that the person be provided with the evidence. 74 The issue of natural justice and procedural fairness was dealt with at length by Ritter AP in Health Services Union of Western Australia (Union of Workers) and Director General of Health in Right of the Minister for Health as the Metropolitan Health Service, the South West Health Board and the WA Country Health Service (2008) 88 WAIG 543. He noted: “183 It is important to acknowledge this, as the requirements of natural justice and the consequences of any breach depend upon the particular statutory power being exercised and the individual facts and circumstances. As stated by Brennan J in Kioa at 612: “The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power.” 184 In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 the High Court in joint reasons said at [26]: “It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1853 requires. It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case.”” 75 The statutory scheme in this case sets out a clear and detailed process with specific requirements as to what the person is required to be provided with in order to enable them to respond to the allegations. In this case those requirements have been met. 76 From the outset Mr Weygers was provided with the information “necessary to inform (him) of the nature of (the) breach(es) of discipline” and the particulars and he responded in detail. In addition, by the time he responded to the charges, he also had “perused” the statements of the complainants provided to Mr Baskwell. 77 In the circumstances of the statutory scheme, and the requirement to provide natural justice, I find that Mr Weygers was provided with the information and particulars of the alleged breaches of discipline to enable him to respond to them as required by the statutory scheme. He was not required to be provided with the statements and correspondence for that to occur. Therefore I find that in regard to the respondent’s refusal to provide those to him, Mr Weygers was not denied natural justice. 78 As to the issue of the material supplied to Mr Burgess, said by Mr Huts’ letter of 8 September 2005 to be relevant information, the difficulty is that we do not know what was provided to him. The letter does not identify it, and Mr Burgess is not unable to say what was enclosed with the letter as being relevant information. Mr Burgess has produced what documents he had but they are not complete. Further he does not know if the documents he has are those provided by Mr Huts as relevant information or whether he requested the information he now has. It is not known whether Mr Burgess had access to particular information adverse to Mr Weygers about which Mr Weygers did not know or upon which Mr Weygers had no opportunity to comment. 79 The respondent says that there is nothing submitted by Mr Weygers as to what he would have put to Mr Burgess differently had the documents provided to Mr Burgess been disclosed to him, and that in fact there is nothing he can put. 80 I do not agree with that approach on the basis that because it is not known what material was provided to Mr Burgess, it cannot be known what else, if anything, Mr Weygers might have put to Mr Burgess. He may have put more, or put something different, or he may not. 81 Although the applicant refers to adverse material, the problem in this case is in the absence of any degree of certainty about what material was provided to Mr Burgess it cannot be concluded that Mr Weygers was afforded natural justice, because it is not known whether adverse material was supplied. Having said that, the question arises in passing as to why, given the separation in the PSM Act of the investigation and inquiry processes, the inquirer was provided with more than the complaints of the complainants and the details of the charges? Why would he have the Baskwell Report? 82 Accordingly, I conclude that due to the lack of certainty as to what relevant information was provided to Mr Burgess, there is no certainty that Mr Weygers was not denied procedural fairness. In those circumstances, I must conclude that he was denied procedural fairness. 83 The question to be answered is what is the effect of this particular denial of natural justice? Both parties submitted that the Arbitrator is not able to cure this deficit. The applicant says that the denial of procedural fairness makes the respondent’s decision a nullity. 84 According to Official Solicitor to the Supreme Court v K and another (1965) AC 201 at 219 and Brighton Council v Compost Tasmania Pty Ltd (2000) 109 LGERA 190, the failure to disclose adverse material is a denial of natural justice which renders the decision made in the disciplinary process to find Mr Weygers had committed breaches of discipline a nullity. 85 The effect of the denial of procedural fairness on the respondent’s decision is that it is “regarded, in law, as no decision at all” (Plaintiff s157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at 506). In all of the circumstances the appropriate order in this matter is to declare that the finding by Mr Burgess that the charges were proved and the penalties imposed by the respondent are a nullity. 2008 WAIRC 01363 REGARDING THE DECISION TO DISCIPLINE AND REPRIMAND THE EMPLOYEE WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES PETER HANS WEYGERS APPLICANT -v- DEPARTMENT OF EDUCATION AND TRAINING RESPONDENT CORAM COMMISSIONER P E SCOTT DATE FRIDAY, 5 SEPTEMBER 2008 FILE NO/S APPL 118 OF 2006 CITATION NO. 2008 WAIRC 01363 1854 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. Result Order issued Representation Applicant Mr I Viner QC and Mr D Wee (both of counsel) Respondent Mr R Andretich (of counsel) Order HAVING heard Mr I Viner QC and with him Mr D Wee (both of counsel) on behalf of the applicant, and Mr R Andretich (of counsel) on behalf of the respondent, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby declares: That the finding that the charges against Mr Weygers were proved and the penalties imposed upon him by the respondent are a nullity. (Sgd.) P E SCOTT, [L.S.] Commissioner. AWARDS/AGREEMENTS—Variation of— 2008 WAIRC 01307 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING, AND ALLIED WORKERS UNION OF AUSTRALIA, ENGINEERING & ELECTRICAL DIVISION APPLICANT -v- KONE ELEVATORS PTY. LIMITED AND OTHERS RESPONDENTS CORAM COMMISSIONER S J KENNER DATE FRIDAY, 29 AUGUST 2008 FILE NO/S APPL 26 OF 2008 CITATION NO. 2008 WAIRC 01307 Result Award varied Representation Applicant Mr L Edmonds Respondents No appearance Order HAVING heard Mr L Edmonds of counsel on behalf of the applicant and there being no appearance on behalf of the respondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders – THAT the Lift Industry (Electrical and Metal Trades) Award 1973 (No. 9 of 1973) be varied in accordance with the following schedule and that such variation shall have effect from the first pay period on or after the date of this order. COMMISSIONER S J KENNER SCHEDULE 1. Clause 12. – Overtime: Delete paragraph (f) of subclause (3) of this Clause and insert in lieu thereof the following: (f) Subject to the provisions of paragraph (g) of this subclause, an employee required to work overtime for more than two hours shall be supplied with a meal by the employer or be paid $10.70 for a meal and, if owing to the amount of overtime worked, a second or subsequent meal is required the employee shall be supplied with each such meal by the employer or be paid $7.30 for each meal so required. 2. Clause 16. – Special Rates and Provisions: Delete subclauses (5) and (6) and insert in lieu thereof the following (5) An Electrician Special Class, an electrical fitter and/or armature winder or an electrical installer who holds and, in the course of the employee's employment may be required to use a current "A" Grade or "B" Grade License issued pursuant to the relevant regulation in force on 28th day of February 1979 under the Electricity Act, 1945 shall be paid an allowance of $20.50 per week. 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1855 (6) An employee holding either a First Aid Medallion of the St. John Ambulance Association or a Senior First Aid Certificate of the Australian Red Cross Society, appointed by the employer to perform first aid duties shall be paid $10.10 per week in addition to his/her ordinary rate. 3. Clause 17. – Car Allowance: Delete subclause (3) and insert in lieu thereof the following: (3) A year for the purpose of this Clause shall commence on the 1st day of July and end on the 30th day of June next following. RATES OF HIRE FOR USE OF EMPLOYEE'S OWN VEHICLE ON EMPLOYER'S BUSINESS MOTOR CAR AREA AND DETAILS ENGINE DISPLACEMENT (In Cubic Centimetres) Rate per Kilometre (Cents) Over Over 1600cc 1600cc 2600cc -2600cc & Under Metropolitan Area 76.9 68.7 59.7 South West Land Division 78.5 70.3 61.1 North of 23.5' South Latitude 86.2 77.5 67.5 Rest of the State 81.1 72.7 63.3 Motor Cycle (In All Areas) 26.5 cents per kilometre 4. Clause 18. – Fares & Travelling Allowance: Delete subclause (2) and insert in lieu thereof the following: (2) An employee to whom subclause (1) of this Clause does not apply and who is engaged on construction work or regular repair service and/or maintenance work shall be paid an allowance in accordance with the provisions of this subclause to compensate for excess fares and travelling time from the employee's home to his/her place of work and return: (a) On places within a radius of 50 kilometres from the General Post Office, Perth - $15.90 per day. (b) For each additional kilometre to a radius of 60 kilometres from the General Post Office, Perth - 87 cents per kilometre. (c) Subject to the provision of paragraph (d), work performed at places beyond a 60 kilometres radius from the General Post Office, Perth shall be deemed to be distant work un