Giddings, Michael David v Maynes, J P

[1989] FCA 855

IN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	) No. V1 23 of 1989
INDUSTRIAL DIVISION	1

BETWEEN: MICHAEL DAVID GIDDINGS, RUSSELL WILLIAM COLE, LINDSAY JAMES TANNER, EMMANUEL LAMBROU and JANET RUTH WHEATLEY

Applicants

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AND: J.P. MAYNES , T.W. SULLIVAN, R.J. WASSON, M. BOURKE, v. HIGGINS, R.D. CLARKE, N. STRANGWARD, J.D. SWORDS, D.J. FRY,

L. T. HAUFF and M. WANT.

Respondents

CORAM :  Jenkinson J.

PLACE	:	Melbourne
DATE :	11 August, 1989

REASONS FOR JUDGMENT

Applications for interlocutory orders pending the determination of two applications under s.209 of the Industrial Relations Act 1988.

with the rules of the Federation of resolutions passed on 7 August to make further orders nisi calling in question the conformity

It seems clear to me that in order to resolve what the parties seek to put in issue, and in order to enable the substantive contentions that the parties desire to advance for and against the grant of interlocutory relief, it would be necessary

1989 by the national executive, which are set out in paragraph 4 of the affidavit of Teresa Mary Kelleher which is sworn this day; and, if it be necessary, I would take the steps appropriate to

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raise those questions.

The applicants claim that a decision to sell this real property is a decision committed by the rules, of which the branch rules form a part, to the stata executive. The national executive denies that that is so and contends, at the lowest, that any decision or desire of the state executive to sell real property, which is being for practical purposes administered and controlled by a state branch, is subject to the overriding control of the national organs of the union. I am persuaded to the conclusion that there is an arguable case for the acceptance of the contentions of the applicants. I think I would have been very doubtful myself, uninstructed by authority, that there was such an arguable case. Left to myself I think that I would have come to the conclusion that any power of management and control, and so the exercise of a power of sale in furtherance of a decision made

would read rule 12 of what it is convenient to call the national overriding decision by the national executive. That is the way I in exercise of management and control, would be subject to an rules, and particularly that part of clause 2(a) of rule 12 which
reads :

"All Branch rules made pursuant to this sub-rule shall form part of and shall not be inconsistent with these rules. Such Branch rules shall be subject to these rules. The power given to the Branches by this sub-rule to make rules for their own internal management shall not be taken as a delegation of power to the Branches to make rules precluding the exercise of the National

Executive of any of its powers under Rule 27 hereof."

Uninstructed by authority, I would have thought that the proper construction of the rules as a whole, that is to say the national rules and the state rules, would completely subordinate powers of control over property by the state executive and other state organs to the exercise of the powers given by rule 27 to the national executive. But a different view is taken in a careful and considered judgment by a judge of the court with very much more experience of industrial law than I have, and who had, it is pretty clear, had the opportunity to give rather more time to the consideration of the matter than I have, having regard to the date of this proposed auction. In those circumstances, I think it would be quite wrong for me to say there was not an arguable case when Mr. Justice Northrop found that there was an arguable case about a very similar question. It may be that distinctions could be drawn between the precise questions that he was concerned with and the question I am concerned with, but it is perhaps not very

property and he was apparently mainly concerned with other forms	concerning myself specifically with a very large piece of real likely that a different conclusion would emerge because I am
of property.
There therefore arises the question as to whether it is appropriate to grant interim relief of a kind which will enable the sale proposed to proceed, and to proceed in circumstances where there would be no risk of serious harm to the organisation by reason of an inability to complete a contract made next Wednesday or by reason of serious delay in the completion of such
a contract.
Although I have been greatly worried during the course of the hearing about the difficulties of framing orders to clear the way for registration of an instrument of transfer in performance of such a contract, having regard to the pending proceedings in the Supreme Court, it may be that those are not insuperable difficulties now that the applicants are parties to the proceeding in the Supreme Court. It might be possible to make an order directing the respondents to cause the plaintiff in that proceeding to move for a final order in that action in the terms of paragraph 2 of the claim for relief in the endorsement on the writ standing in place of a statement of claim, that is to say an order for rectification of the register. One would take, of course, an undertaking by the applicants, who are now parties to that action, to consent to such an order on motion. And it is possible, I suppose, that a judge of the Supreme Court in those circumstances might, on Monday, make such an order, though there is no certainty that he would, but it might be thought that the
the respondents cause the registered organisation to, first of risk could be taken. That could then be followed by an order that
all, execute a contract of sale in respect of the contemplated sale at auction and, second, execute an instrument of transfer in performance of the contract of sale. While one might hesitate to take those steps, if other considerations were strong enough one might perhaps take them.
I have come to the conclusion that there really are not sufficiently compelling considerations in favour of making such an interim order to justify what is, after all, a drastic interference by the court in the dispositions by this registered organisation of its property. It is a very, very substantial part of the property of the organization. The loss in those circumstances, which is plainly going to be sustained if the auction does not go ahead, $8,000, $9,000 or $10,000, is not in itself such a serious matter aq to weigh very heavily. The other

-	concern, which is one that I for a long time gave a good deal of weight to, was that an opportunity to sell while a market in this class of building is generally supposed to be very good may be lost. But, really, that is to draw upon my own uninformed and almost certainly worthless impressions and not to have regard to the evidence. When you look at the evidence there is not really any substantial weight of evidence on which to base a well justified fear of substantial loss by change of market conditions. On the other hand, if it turned out that the national organs are the organs to which the rules commit decisions of this kind, there would have been a gross interference in the processes of the organization in order to save what is, in relation to this
there would also be the interference with the rights of the organization, a comparatively small sum of money. Of course,
members to have their affairs regulated under the rules, for which they are ultimately responsible. In all the circumstances I do not think I would be justified in making an interim order of the kind that is sought.
I am also to some extent influenced by the circumstance that, although I am prepared to think I should find there is an

arguable case, I am certainly not able to come to the conclusion that it is a strong case. It is obvious from what I have said that it does not seem to me to be at all a strong or clear case in favour of the submissions that are advanced on behalf of the applicants.

In those circumstances I think I should refuse the

orders	sought.	8
I certify that this and the 5 preceding pages are a true copy of the Reasons for Judgment of the Honourable Mr. Justice Jenkinson.
Dated: 11 August, 1989