Gibbs, J.L. v Cooney, J.A

[1986] FCA 607

I n orcier tn zuccrod under S . 1 4 1 of the Conclllstlon

and hrbitrltion Act 1 9 0 4 , an sppllcsnt has to Satlsi-:? the

'courr, that the respondent aqalnst, xhom an order 1s ssuqnt 1s

a p?rson -2ho 1: under an oblicration to perform o r nbser-ie the

rl-lles Oi the regl~tered Grqsnization t S. 14Lt IGI I . The vords

''%hgse cules" In that sub-sectlon refer to the partlcular

rules the subject of the. proceeding and not to the rules In

~qeneral; that 1 s to say they r e t e r to the rules In respect of vhlch the court 14 asked to make an order gvlnq directions

f o r thelr pertormance or observance.

In this ca3e It Is contended that th? respondent, as

Federal 3ecretar:r of the Royal Australian Nurslnq Federatlon.

, -.

has a duty. under rule l 3 t f r , to "serve a Notice of Meeting

gn esch F?deral Counclllor at least tyenty-elght ( 2 8 ) da::s

bef-.re the dat? set for such Meetlnq", referring to the

lneetlnu s-hlcn the pr?sent applicant has declded should be

held on 11 January of next :Jew. -

13n chc facts Yhlch have been admitted by counsel fo r

the applicant ( f o r the purposes o t these proceedlngzJ , It

zeems to me to be clear that the respondent 1s not at present

l.ind?t' a duty to p?rform or Dbserve rule L Z r f ) ty servlng a notlcr oi the proposed special Meetmq or Federal L'ouncll. I ha:-e rormed that oplnlon txause or 9 number or matters.

colnmenclng uith the declslon or the Federal Councll, on 22

June 1386, "to grant the respondent leave of absence from 22

June 1986 to 3 Februar:; 1387". On 2 2 June 1986, it also

r ~ s ~ l ~ d "to authorise the Executive Committee of the Federal Councll to address the matter of the lea-;? of the Federal

Secretar:; and the aFpolntment of 9 person to fulfil the dutle5 or the Federal Secretary". The authsritg conferred on the E:iecutice Committee =as exerclsed on 30 June 1396. xhen it "empowered Enld Jenkins to perrorm the tunctlons of

Federal Secretary durmq the absence on leave or the

respondent or untll such time as the Executive Committee

should determine" (those three passages are taken from the

document or "sdmitt?d facts" ITlven	to the	court	by	the
sppllcant 5 counsel).

-

' I . . . the Federal Councll further requested

that I 3sk :IOU to refraln trom an:J rurther

.actllrltles 6 3 the Federal Secretary during

your absence on leave."

In my oplnlon. In the light of those matters. ~t is

qulte plaln, despit? the re3ourceful arguments ad7anci.d by

Or I Buchanan Q . C . . on Dehalf of the applicant, that at the

present tune the dut:; !under rule 1 8 t i ) does not devolve upon

the respondent. Sne IF currently on leave of absence from

her duties as Federal Secretary, having been granted that

leave or absence by the Federal Councll which had the express power to do 30. as appears from rule 26(ci; that sub-rule, so

far a3 material. states that:-

"The Secretar17 snall be ... allowed such

leave of sbsence a3 the Federal Councll may

determlne. 'I

That power havlng been exercised, the respondent 1 s on leave

and 1n my opinion 1 s not !under any duty to glve the notice

which, by reason o t the pronslons of rule 18(f). she would

otherwise be requlred to qlve.

I perhaps should say that if, contrary to the o p l n l o n

!ust expressed. Yhlch I quite tirml:J hold, there 1 s

nonetheless a dut:; !upon the respondme to exercise that

iunctlnn Iunder rule L B < f t , a qllcstlon would ar~se 1s t 3

;heth.?r the court, ~n the exercise c11 ~ t s discrftlon. should

make thc orders sought: matters wnlch xould be relevant to

that discretion are that the r5spondent 1'5 on les7e of

.-

sbsence. that a person has been appolntsd to perform the

function o t Federal Sxretary durlnu her absence on Leave.

and that the respondent has been asked by the appllcant, at

the directlon of: the Federal Councll. "to refraln from any

further activities as the Federal Secretary	durmu	Cherl
absence on leave".

In those circumstances. I n my oplnion Lt woluld not be

a proper exerclse of the court's dlscretlon to make an order

qiviny directions to the respondent to perrorm and observe

the 3uD-rule. 4 reference may be added, as to the pouer ot

Federal Council to take the actlon xhich It has. to one other

rule. namely, rule 13, zhlch pro7ldes that :-

"The affairs of the Assoclatlon shall be

manaqed by a federal Councll which shall be

the hiqhest deliberative body ~i? the	"
Association.

In addition. Federal i'ouncll is. under ule 15. the

Committee of Management of the Assoc~~tion." Accordingly I

do not think there can be any doubt that It had the power to

act as it did; the proper functioning of the reqistered

organization requlred that It should haye power to appomt a

person to pertorm the dutles o r the offlce of federxl

3ecretar:r. lurlnq th? 3t43encp on lea-;r or the respondent.

For those reasons. m mj- opmlon It 1 s clear that at thls

rime the dut:; under	ru le 1 3 t f 1 no Lonuer	de-zolves on	the
respondent.
-

-\ccordlngly, the ru le to show cause, made an J

December L9Sb. vi11 be dlscharqed.

I re!ect Mr. Falqenbaum S appllcatlon f o r costs. The

FrlnclpleJ relatlny to the court S dlscretlonary power under

5. 197k to order the payment of costs by an applicant. on the

qrounii that he had Instituted the proceedlnq vlthout

reasonable cause, cjnre enunciated In H & -J Chr:rsler

Justralia Ltd. ( 1 9 7 6 ) 26 FLR 257 at 272-5. That was a

declslon ot CJorthrop J. In vhich he applied, to such an

applicatlon. the prlnciples lald doh? In cases such as the

General Steel case ( 1 9 6 9 ) 112 CLR 125 at 138. I rerer to the

well known dictum of Slr Gartield Earwick as to the

clrcumstances In which a court may summarily termmate an

actlon. Northrop J. took the view that,havlng regard to the

pollcj . of the leglslature enunciated In S. 197B, It 1 s

necessary ior a respondent seeking costs to show that the

applicant 3 clam wa3 "manlfestly groundless" or , as It has

been expressed elsewhere. "bad beyond argument". In Llllev v

Mauru Coca1 Government Councll 1 unreported - delivered

21:11. 1973) I expressed	aqreement wlth that	3plnlon	of
Plorthrop ,J.

3ub3tantl-:e appllcstlon should fall, m my oplnlon It can not be said that the sppllcatlon vas "bad beymd argumrnt". In my opinion It was not ~nstltuted "xthout reasonable cause".

Having regard to the circumstance that the holdrng of the

meetlng in;rolved brlnglng the members 5f Federal L'ouncll to

Melbourne from all States and the T rritories. at

considerable expense to the tederal1:r registered

organizstlon. ~t 7x1 understandable that the appllcant should

wlsh to avoid. l f possible. the rlsk of some member

successtullp contendlnq after the meetlng that the wrong

person had slgned the notice and that it shoula have been

slgneci by the respondent.

I may add that vhen the court ad~ourned at lunchtime

lt, waLa likely that the matter muld be ad~ourned to next

Wednesday. It =a3 only upon retlecting on the matter during

the luncheon adJournment, and looklnq at the rules In greater

detall than had been possible during the morning, that 1

tended to the conclusion that the appllcant's argument should

not be upheld. However, it can not falrly be described as

being "bad beyond argument" 30 I am not prepared to make an

order f o r the appl-v-nt +n pav the respondent 5 costs.

l l

I c* : - - +... *., _ _ " -. ~ *_ - L,.1 F 1.7 ' :he Phce

31'L' . _I 'S ;:,P 1 . 1 cry., ,f t h ?

-

' J -:.?lC:l% L

. . 1 : c: I . , 1- ,.ouI'