Geneff, R.M. v Peterson, F.E

[1980] FCA 126

GENEFF v. PETERSON (1980) 49 FLR 64
Conciliation and Arbitration - Practice

COURT

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION
Toohey J(1)

CATCHWORDS

Conciliation and Arbitration - Registered organization - Rules - Oppressive, unreasonable or unjust - Performance of rules - Rule nisi - Application to amend - Applicant to establish arguable case - Conciliation and Arbitration Act 1904 (Cth), ss. 140, 141.

Practice - Jurisdiction to authorize amendment to rule nisi under Conciliation and Arbitration Act 1904 (Cth) - Federal Court of Australia Act 1976 (Cth), s. 23.

HEADNOTE

The applicant having obtained a rule nisi against the respondents seeking relief pursuant to ss. 140 and 141 of the Conciliation and Arbitration Act 1904 sought leave to amend it both by way of clarification and addition. The respondents who had been served with the rule nisi opposed the amendments in most respects.

Held: (1) It was appropriate that the respondents should be heard in relation to the amendment application as they had been served with the rule nisi.

(2) The court possessed jurisdiction to make the amendments sought pursuant to both its inherent authority and s. 23 of the Federal Court of Australia Act 1976.

(3) In determining whether to authorize the amendments: (a) it was for the applicant to demonstrate an arguable case in relation thereto; (b) the appropriate basis of approach was that it was important that the rule nisi should reflect all matters truly in issue between the parties and sought relief which arguably the applicant was entitled to.

(4) All the amendments were arguable in the relevant sense except: (a) that seeking relief in relation to the rule of a registered organization requiring branches to be financial before being represented on federal council; and (b) that submitting that the rules of the organization were oppressive, unreasonable or unjust and contravened s. 140 (1) (c) of the Act by failing to require the federal secretary-treasurer to submit all industrial agreements and amendments thereto to any branch affected.

HEARING

PERTH, 1980, September 1,2,12. #DATE 12:9:1980

APPLICATION.

The applicant applied to amend a rule nisi under the Conciliation and Arbitration Act 1904 previously obtained.

H. W. Olney Q.C. and K. Edwards, for the applicant.

R.C. Kenzie, for the respondents.

Solicitors for the applicant: D.H. Schapper & Co.

Solicitors for the respondents: S. Masselos & Co.

T.J. GINNANE

JUDGE1

SEPTEMBER 12.

TOOHEY J. delivered the following judgment.

On 29th July, 1980, the applicant obtained a rule nisi against the respondents pursuant to reg. 70 of the Conciliation and Arbitration Regulations. The proceedings are under ss. 140 and 141 of the Conciliation and Arbitration Act 1904 (Cth). The applicant acknowledges that some of the relief sought within the rule nisi is not within the power of this Court to grant and some does not truly reflect the matters of which she complains. She now seeks leave to amend the terms of the rule nisi, partly to clarify the existing rule but also by way of addition, the applicant arguing that any additional matters fall within the scope of the affidavit sworn by her in support of her application. (at p65)

1. The respondents oppose, in most respects, the amendments sought. The applicant did not challenge their right to be heard and since they were served with the order nisi it is appropriate that they be heard. (at p65)

2. Although counsel were unable to point to any express provision authorizing the amendment of a rule nisi, I have no doubt of my power. Aside from any inherent authority, s. 23 of the Federal Court of Australia Act 1976 (Cth) empowers the court: ". . . in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders . . . as the Court thinks appropriate". The term "jurisdiction" is, I think, used in relation to subject matter (St. Justins Properties Pty. Ltd. v. Rule Holdings Pty. Ltd. (1980) 40 FLR 282 ). The matters presently before the court are, in that sense, within the jurisdiction of the court. (at p65)

3. Neither the Conciliation and Arbitration Act nor the regulations made thereunder expresses the criteria by which an application for a rule nisi or an application to amend such a rule are to be judged. But counsel approached the matter on the basis that it was for the applicant to demonstrate the existence of an arguable case. In my view that is a proper approach. In so far as any amendment sought is no more than the formulation with greater precision of something within an existing rule nisi, the question of onus can hardly arise. (at p65)

4. In dealing with this application I am led, as counsel were led, to touch on matters that more properly are for the court on the return of the rule nisi. I do this only because if the respondents can satisfy me that some of the relief sought by the proposed amendments cannot succeed, those amendments ought not be granted. In the absence of a motion to disallow any of the relief sought within the existing rule nisi, it is not open to me to reject anything already the subject of that rule. (at p65)

5. I shall deal in turn with each item in the application to amend, approaching it on the basis that it is important that the rule nisi reflects all matters truly in issue between the parties and seeks relief which, arguably, the applicant is entitled to. With each amendment sought, I shall begin by expressing in a shorthand way the relief asked for. (at p65)

6. 1. A declaration that the rules contravene s. 140 (1) (a) in failing to provide for the manner of summoning meetings of the federal council as required by reg. 115(1) (d) (iii). (at p66)

7. Regulation 115 (1) (d) (iii) read with reg. 115 (2), requires that the rules of an organization provide for "the manner of summoning meetings of members and of the committees". Rule 16 (e) requires the federal council to meet annually and at its preceding meeting to fix the date and place of the next meeting provided that a special meeting may be called at any time by the majority of members of the federal council. Rule 21 (a) obliges the general secretary-treasurer to "summon members of the federal council to meetings". The applicant's complaint is that the rules fail to fix the form of notice by which members of the council are summoned and fail to provide a minimum period of notice. Whether such a failure, if it exists, is truly a contravention of s. 140 (1) (a) rather than s. 140 (1) (c) is itself a matter for debate. I say no more than that the point is arguable and that the applicant should have the opportunity of arguing it. (at p66)

8. 2. A declaration that r. 16 (a) is void in so far as it provides that the general secretary-treasurer shall by virtue of his office be a member of the federal council. (at p66)

9. In the applicant's submission, the rule is in conflict with s. 133 which requires that the holder of an office be elected either by a direct voting system or by a collegiate electoral system as those terms are defined. (at p66)

10. In the respondents' submission, s. 4 (5) of the Act provides a complete answer to the applicant's case. There is some danger in seeking to paraphrase that subsection but in effect it provides a notional compliance with the requirements of a collegiate electoral system even though among the persons by and from whom the officers are elected are persons, not more than fifteen per cent, who are the holders of offices entitling them to membership of that body but are not members by virtue of an election, so long as they are - "persons each of whom has held such an office . . . at all times since being elected . . . under a collegiate electoral system, or a direct voting system . . .". (at p66)

11. Counsel for the respondents drew attention to the judgment of Mason J. in R. v. Dunphy; Ex parte Maynes (1978) 139 CLR 482. His Honour said:
    

"The question is whether s. 4 (5) is again applied in determining whether the persons who held such offices were elected to those offices 'under a collegiate electoral system . . . as defined in subsection (1)'. My own disposition would be to answer the question in the affirmative . . ." (1978) 139 CLR, at p 494. (at p66)

1. Although his Honour did not find it necessary to determine the point, his reasons, concurred in by Barwick C.J. and Stephen and Aickin JJ., are clearly of the strongest persuasive authority. However there remains, as an arguable issue of fact, whether the general secretary-treasurer was elected to that office under a collegiate electoral system or a direct voting system. The applicant should have the opportunity of obtaining a decision of this Court on that point. It may be that any relief to which the applicant is entitled in this regard must be found in s. 141 rather than s. 140. But on this application I do not think I should seek to resolve that point. (at p67)

1. 3. A declaration that r. 16 (b) is void, being in contravention of s. 140 (1) (c) and reg. 115 (1) (d) (v).
   The rule requires that before a branch can be represented on the federal council all per capita dues and levies shall be paid, unless an exemption or suspension has been granted. In my view a requirement that a branch be financial does not impose conditions that are oppressive, unreasonable or unjust nor is it contrary to the concept of the control of committees of an organization and its branches by the members. It may be that in a particular case the imposition of a levy is open to challenge but no such case has been presented here. In my view there is no substance in the order sought and the application to amend to include it should not be allowed. (at p67)

2. 4. A declaration that the rules contravene s. 140 (1) (c) by failing to require the federal (sic) secretary-treasurer to submit all industrial agreements and amendments thereto to any branch affected. (at p67)

3. I can find nothing in the Act or regulations which requires the federal executive of an organization to submit proposed industrial agreements to branches for their approval. Rule 26 empowers the federal council to enter into and execute industrial agreements and variations of them. Curiously r. 26 (b) reads: "When an industrial agreement has been submitted to the branch executive or executives for approval, special meetings of such executives or executive shall be called . . .". There is a question of interpretation involved here. Is r. 26 (b) merely permissive; should "when" be read as "if"? Or, on the proper construction of the entire rule, is there an obligation on the federal council to submit a proposed industrial agreement to any branch likely to be affected by it? If it is the former, there is, as I have already said, nothing in conflict with the Act or regulations. If it is the latter, the applicant has no cause to complain. But she has not sought interpretation and in my opinion this proposed amendment should not be allowed. (at p67)

4. 5. A declaration that the rules contravene s. 140 (1) (c) by failing to make adequate provision for the payment of travelling and other expenses incurred by members of the federal council on duties other than attending meetings of the council. (at p67)

5. Rule 17 (m) contains authority for the payment of travelling and other expenses when delegates attend meetings of the federal council. It continues: "All other expenses shall be paid by the branches . . ." I do not think that this requirement imposes conditions which are oppressive, unreasonable or unjust. It seems to me proper for the federal rules to confine the reimbursement of delegates to the federal council to occasions when they act in that capacity. (at p68)

6. 6 and 7. I deal with these two together as they are essentially corrollaries of the relief sought in item 2. Orders are sought pursuant to s. 141 requiring the respondents other than the union to treat the office of general secretary-treasurer as vacant and the federal president to call a meeting of the council to fill that office as a casual vacancy. (at p68)

7. Since I have allowed an amendment designed to challenge the position of the general secretary-treasurer, it follows that I should allow the relief sought in these items. (at p68)

8. 8. An order directing the federal secretary to perform r. 27 (a) by submitting all matters involving any industrial dispute affecting members of the Western Australian branch to the secretary of that branch. (at p68)

9. Rule 27 (a) provides that before any industrial dispute is submitted to the Court of Conciliation and Arbitration (now Commission), the federal secretary shall submit the matter to the branch secretaries. (at p68)

10. There was no challenge to the rule itself and the respondents complain that the applicant seeks an order in the abstract. In my view the court should not order the respondents, in general terms, to observe the requirements of the rules. It is necessary to point to some respect in which the rule has been breached or perhaps circumstances which point irresistibly to a proposed breach. That is not the case here and I disallow the application. (at p68)

11. In summary then, I allow the application to amend in respect of pars. 1, 2, 6 and 7. (at p68)

12. Counsel were generally agreed as to the directions appropriate to be given for the hearing of this application once the application to amend had been disposed of. The only matter really in issue between them was the venue for the hearing. (at p68)

13. Counsel for the respondents pointed out that his clients were for the most part from the eastern seaboard, that five lived in Sydney, which city housed the files of the respondent union. He argued that the balance of convenience pointed to Sydney as the venue. (at p68)

14. There is much to be said for this submission but the applicant's answer was simply that if the hearing were not in Perth it would be impossible for her to meet the expenses of attending. I assume from this, nothing being said to the contrary, that the Western Australian branch will not meet her expenses. I assume also that the costs of the respondents will be met by the respondent union. The directions include leave to file affidavit evidence and I am hopeful that the issues of fact will be relatively limited and determinable on affidavit although some cross-examination of the deponents may prove necessary. (at p69)

15. The applicant was entitled to commence proceedings in this Registry and I am of the opinion that the respondents need persuade me that it is proper to change the venue. Because of the likely injustice to the applicant if the venue is changed, I propose that the hearing take place in Perth. If it be shown that the applicant is protected in respect of any costs incurred by her in connexion with the hearing the matter may warrant further consideration. (at p69)

ORDER

I attach to these reasons a minute of the directions I now issue.

ORDER FOR DIRECTIONS MADE 12TH SEPTEMBER, 1980

It is hereby ordered that:

1. The applicant shall file and serve upon the respondents within ten days from this date a statement of claim.

2. Service by the applicant on the respondents' solicitors, S. Massellos & Co. of 42 Martin Place, Sydney, shall be sufficient service.

3. Within fourteen days of the receipt of the applicant's statement of claim, the respondents shall file and serve on the applicant a statement of defence.

4. Service by the respondents on the applicant's solicitors, D.H. Schapper & Co., of 214 St. George's Terrace, Perth, shall be sufficient service.

5. The parties shall give discovery and allow inspection of documents within fourteen days of filing of the statement of defence.

6. Leave is granted to the parties to file affidavit evidence within fourteen days of the period allowed for discovery and inspection of documents.

7. The matter is listed for hearing in Perth on 26th November, 1980.

8. Liberty is granted to either party to apply for further directions on seven days' written notice.

Orders accordingly.