Duff v McCarney

FEDERAL COURT OF AUSTRALIA

Duff v McCarney [2008] FCA 1429

Federal Court Rules O 48 r 7, O 48 r 8
Workplace Relations Act 1996 (Cth) Schedule 1 (s 164, s 164A)

ALAN DUFF v STEPHEN MCCARNEY and EARL SETCHES

NSD 1452 OF 2008

BUCHANAN J
15 SEPTEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1452 OF 2008

BETWEEN:

ALAN DUFF
Applicant

AND:

STEPHEN MCCARNEY
First Respondent

EARL SETCHES
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	15 SEPTEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Stephen McCarney and Earl Setches appear before the Federal Court of Australia at 9.30am on Thursday 18 September 2008 in the state of NSW at Sydney to show cause why orders should not be made in the rule to show cause upon which the applicant moves and which is supported by the affidavits of Alan Duff and David Kelly affirmed on 15 September 2008.

2. To the extent necessary, time required for service of the rule to show cause and supporting affidavits is abridged.

3. Service may be effected in the fashion sought in paragraphs (a) and (b) on the third page of the rule to show cause.

4. The further hearing of this matter is adjourned to 9.30am on Thursday 18 September 2008.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1452 OF 2008

BETWEEN:

ALAN DUFF
Applicant

AND:

STEPHEN MCCARNEY
First Respondent

EARL SETCHES
Second Respondent

JUDGE:	BUCHANAN J
DATE:	15 SEPTEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. This matter comes before me as Duty Judge. The applicant, Mr Duff, seeks an ex parte order under O 48 r 8 of the Federal Court Rules in the form of a rule to show cause. Order 48 deals, so far as is relevant to the present matter, with a mechanism for seeking orders under ss 164 and 164A of Schedule 1 of the Workplace Relations Act 1996 (Cth) (‘the Act’). Section 164 permits the Court to make an order directing the performance or observance of a rule of an organisation registered under the Act. Section 164A permits the Court to make an order directing that specified things be done to rectify a breach of such a rule.

2. An application for a rule to show cause under O 48 must be supported by an affidavit, which states certain identified matters (O 48 r 7(2)).  Order 48 r 7(4) provides:

   ‘7(4)If the application is made under section 164 of the RAO Schedule, the affidavit must state:

   (a)the nature of the order sought by the applicant; and

   (b)each rule of the organisation the applicant seeks to have performed or observed by a person who is under an obligation to perform or observe the rule; and

   (c)the ground relied on by the applicant to establish the obligation of the person to perform or observe the rule.’

   (The RAO Schedule…